Public Bill Committee

[Mr. Edward O’Hara in the Chair]

Written evidence to be reported to the House

CJ&I 02 Magistrates Association
CJ&I 280 Police Federation of England and Wales
CJ&I 01 Mr S Goldthorpe
CJ&I 03 Association of Chief Police Officers (ACPO)
CJ&I 04 The Law Society
CJ&I 05 Standing Committee for Youth Justice
CJ&I 06 John Hamilton
CJ&I 07 Peter Vian
CJ&I 08 Evangelical Alliance
CJ&I 09 Dr. Graham Wade
CJ&I 10 Barbara Quarcoo
CJ&I 11 David Hustler
CJ&I 12 Dr. James Waddell
CJ&I 13 Mark Reed
CJ&I 14 Robin Ware
CJ&I 15 Catherine Meirion-Jones
CJ&I 16 Gavin Rendall
CJ&I 17 Timothy Daniels
CJ&I 18 Bible Theology Ministries
CJ&I 19 Adrian Huxham
CJ&I 20 Steve Potts
CJ&I 21 Yvonne Foley
CJ&I 22 Barrie Jones
CJ&I 23 Adam Nixon
CJ&I 24 Elaine Naughten
CJ&I 25 Rev. G Barrett
CJ&I 26 L Phillips
CJ&I 27 Michael Calwell
CJ&I 28 Jayne Hamilton
CJ&I 29 Andrew Prentice
CJ&I 30 Mandy Bowen
CJ&I 31 Andrew McClintock
CJ&I 32 Jeremy Burdett
CJ&I 33 Andrew Bailey
CJ&I 34 Michael Gordon
CJ&I 35 Anthony Goodall
CJ&I 36 Sylvia Baker
CJ&I 37 Peter Coulson
CJ&I 38 Kingsley Dunn
CJ&I 39 Geoff Ashton
CJ&I 40 Stephen Early
CJ&I 41 Ian Parkinson
CJ&I 42 Susan and Sean Palmer
CJ&I 43 Mrs. N Malcolm
CJ&I 44 Frank Holmes
CJ&I 45 Roy Moody
CJ&I 46 Stephen Saulsbury
CJ&I 47 Peter Badder
CJ&I 48 Richard Haddow
CJ&I 49 Christopher Dodd
CJ&I 50 Marcus Honeysett
CJ&I 51 Emmanuel Oladipo
CJ&I 52 T Cripps
CJ&I 53 Catherine Whitehead
CJ&I 54 Fred Stainthorpe
CJ&I 55 Denis Hayes
CJ&I 56 Kenneth Payne
CJ&I 57 Derek Harkness
CJ&I 58 J Longstaff
CJ&I 59 R James
CJ&I 131 Donald Fleming
CJ&I 140 Stephen M Smith
CJ&I 141 Enitan Ogun
CJ&I 142 Jack Ingham
CJ&I 143 Mr. S Chikhlia
CJ&I 144 Michael Whitehead
CJ&I 145 Philip Aiston
CJ&I 146 John Stanbury
CJ&I 147 Matthew Shaw
CJ&I 148 John W Young
CJ&I 149 Eve Abe
CJ&I 150 Dave Downer
CJ&I 151 Bilga Fitzgerald
CJ&I 152 Christopher Thomas
CJ&I 153 Sallie Rothwell
CJ&I 154 Philip Hodson
CJ&I 155 Rev. George Hargreaves
CJ&I 156 Dave Taylor

The Committee deliberated in private.

On resuming—

Edward O'Hara: I think that we are ready to commence the public part of proceedings. I welcome our witnesses. I remind hon. Members and witnesses that we are bound by the internal knives that we agreed this morning. That means that the first evidence session this afternoon must end at no later than 5.15 pm, the second must end no later than 6.15 pm, and the third no later than 7 pm. I hope that I do not have to interrupt either hon. Members or witnesses in the middle of their sentences, but I will do so if necessary. We must stick strictly to that timetable. It would be helpful to the Official Report if hon. Members would remember to speak into their microphones.
We will first of all hear evidence from representatives of two organisations: the Magistrates Association and the Probation Boards Association. Welcome to our meeting this afternoon. Perhaps it would be appropriate if you started by introducing yourselves, from left to right.

Cindy Barnett:   Good afternoon. My name is Cindy Barnett and I am chairman of the Magistrates Association.

Sally Dickinson:   Good afternoon. I am Sally Dickinson and I am chief executive of the Magistrates Association.

Christine Lawrie:   I am Christine Lawrie. I am chief executive of the Probation Boards Association. I am without my board chair because he is sick, I am afraid.

Edward O'Hara: Thank you.

Q 6060

David Burrowes: As a first general point, I am conscious of the number of pieces of legislation affecting your job at the magistrates court. What level of consultation have you had in relation to the Bill and what is your level of confidence that it will see an improvement in the magistrates court?

Cindy Barnett:   We have been aware of some, if not all, of the provisions because this particular Bill could have been another one. A lot of things have been hanging around for a long time, particularly the youth justice provisions. From the point of view of consultation, we are aware of it now and have put in a briefing, whether or not it will produce an improvement. There are some things that we welcome and, as you can see from the briefing notes, there are some things that we have concerns about. I think that we have a neutral position.

Q 61

David Burrowes: Do you see the youth justice provisions and the generic youth rehabilitation orders as an improvement, and in what ways do you see them as deficient?

Cindy Barnett:   We certainly do not see them as a total disadvantage. In some ways it is a welcome tidying-up because it brings the youth provisions closer to those in the adult court. Having said that, there are some concerns about whether they will confuse people. Of course, everybody gets used to a change in legislation, but this will cause a big change from a selection of things in the youth court that have not been there that long. It is yet anther big change.
We hope that it will increase the flexibility of sentencing, which is something that we always welcome. We would like to hear a little more about the detail of certain matters as the Bill goes through and there are some specifics that we are not entirely happy with. However, as long as it increases flexibility and does not deprive us of any sentencing options, we are content with the general concept.

Q 62

David Burrowes: A set of requirements is laid out in terms of the rehabilitation order. In terms of your practical experience, how do you see that being delivered? For example, do you see the drug treatment requirements and the fostering requirements happening?

Cindy Barnett:   Our only worry is whether there will be sufficient resources. That is something that we are constantly worried about. We do not believe that there are sufficient resources at the moment, within either the adult or youth courts. Some of these provisions are very welcome, but if they are promised and cannot be delivered, that will be an extreme disappointment.

Q 63

David Burrowes: Just on one particular detail, you mention the confusion concerning reparation orders—can you amplify that? Within the requirements of our activity orders there is an element of reparation that is made. Why would you say that the reparation needs to be part of the rehabilitation order?

Cindy Barnett:   At the moment that we have a variety of separate orders, of which the reparation order is one and the action plan, as opposed to an activity requirement, is another. There are separate sentences that we can impose at the moment. We saw the point of the youth rehabilitation order as putting those separate requirements within one community sentence. We did not quite understand why the reparation order was left out. It seemed to us again to be an element of possible confusion. We did not see why it was not included in the same way.

Q 64

Edward Garnier: Have you had any reaction from the Government in response your concerns?

Cindy Barnett:   No, not as yet.

Q 65

Edward Garnier: Would you like to have a reaction from the Government in response to your concerns?

Cindy Barnett:   We would certainly like to see our concerns taken on board, whether that is through possible amendments or changes, or whatever is said in debate.

Q 66

Edward Garnier: I tell you what, let us go as quickly as we can through the areas about which you have concerns. You mentioned the flexibility in sentencing, which you welcomed, but one of the things that has been taken away from you is the possibility of a suspended prison sentence for summary offences. It was suggested to us this morning by one of the officials from the Ministry of Justice that far too many people are getting these sentences, breaching them, and then having to go into custody to serve the custodial aspect of the sentence. I suggested to that official that perhaps one of the reasons why they are getting suspended sentences for summary offences is that they are persistent offenders and the courts have come to the ends of their tethers and there is no other option than to give them a custodial sentence, but the courts check it by making it a suspended sentence. Is that your experience?

Cindy Barnett:   That is certainly one way in which you can end up with a suspended sentence. It need not only be a question of ends of tethers and persistence. The offence can be so serious that a custodial sentence is justified. Certainly, the option to step back from that and to impose a suspended sentence is one that has been used, we understand, in larger numbers than was originally forecast.

Q 67

Edward Garnier: One of the things that the Government appear to be fearful of is that, for good reasons or bad, they seem to be losing control of the numbers of people in prison when there are not enough places to put them in. They are looking for ways to reduce the number of people being sent to prison by people within your association and from the Crown court. Do you think that the abolition of your power to give a suspended custodial sentence will have any bearing on the number of people that magistrates send to prison?

Cindy Barnett:   There is an argument for saying that it might possibly increase them because obviously before we impose a suspended sentence we have to be certain that a custodial sentence is appropriate and that we cannot step back to a community-based penalty. Then if it is going to be custody, it cannot be suspended. So, if there are cases in the future where we come to that conclusion and we cannot suspend, it will mean an immediate custodial sentence. I definitely cannot forecast the precise numbers.

Q 68

Edward Garnier: May I ask a question of both the magistrates and Mrs. Lawrie for the probation boards? One area within the Bill dealing with youth justice that is a matter of concern—whether everybody in the Committee shares that concern is neither here nor there—is the compulsory fostering of people’s children by the state. This is apparently designed to improve the chances of reducing reoffending, particularly among children from what I would loosely, and rather pejoratively, call dysfunctional families. Do you, as a magistrate, and you, as a probation board chief executive and someone who has been a probation officer, have anything to say about the sensible nature of that disposal and the ability of the state—be it a local authority or a foster parent appointed by a local authority—to see this as a good thing?

Christine Lawrie:   I can only give you a personal response. Our association would not have an official view on that. It feels like a good thing to do, but I would be sceptical about whether it will have the sort of impact that people expect it to have. You would have to take each case on its own merits, and there is a danger of the state wanting to step in too quickly to intervene in people’s lives. But I think it is a very difficult issue, because each case is very individual and has its own particular merits. I suppose personally, based on my experience as a probation officer, I feel slightly uncomfortable about the state taking more and more powers away from individual people to manage their own lives. It is extremely difficult and there are individual cases where children really ought to have been taken away and fostered more quickly. I can see both sides of the argument.

Cindy Barnett:   We made the point that we would definitely expect very stringent safeguards to be in place. I am sure we would not—as any bench—consider it unless there was very full information and we thought that there was an overwhelming need. We have a policy in the youth court that if there are overwhelming welfare needs, the matter ought to be transferred to the family proceedings court. That is something we are very much aware of and in our view it would be something that would be considered when it was necessary for welfare needs. That is something that we obviously have to consider in the youth court.

Q 69

Edward Garnier: So, do I understand you correctly that you already have a power to take children, or at least to recommend to the family court that children should go into care or some other place?

Cindy Barnett:   No, I am sorry, we do not do so at present. That happens to be our policy, therefore we understand the link between crimes in the youth court and the welfare needs of the young person. The new suggestion of intensive fostering is welcomed because we can see that in certain extreme cases it could fulfil a welfare need.

Q 70

Edward Garnier: Although it is quite clear from a schedule to the Bill that that will not happen unless the Secretary of State says there are resources to make it happen.

Cindy Barnett:   Well, that comes back to the original point.

Q 71

Edward Garnier: Has anyone told you whether there will be any such resources?

Cindy Barnett:   No.

Edward Garnier: If no one else has any queries, may I ask the ladies about violent offender orders, which a local authority or a police officer can apply to the magistrates court to get? Do you think that these orders to prevent people, apparently, from committing murder, soliciting murder or attempting murder—what I have described as “criminal injunctions”—are a good idea?

Cindy Barnett:   We see them as an extension of risk-based injunctions, yes—civil orders with a heavy criminal penalty. They are obviously something that are foreseen for someone who has committed an extremely serious offence that would not have come near us in the first place. Our feeling is that if we are to be given this power, we do not understand why it is not available to the Crown court as well, which would have dealt with the original sentencing.

Q 72

Edward Garnier: I do not understand that either. Does the probation service think that it has adequate resources to cover violent offender orders?

Christine Lawrie:   I think that, if you looked at VOOs in isolation, the answer would be “probably”, but I think that you have to look at them as part of a longer list of extra activities that may be small in themselves, but add up to a much bigger resource demand. So, the literal answer to your question is, “No, it probably would not make much difference”, but it does make a difference when it is a small, extra bit of work that is added to a pile of small, extra bits of work.

Q 73

David Howarth: May I go back briefly to clause 10 and the abolition of suspended sentences for summary offences? Can I ask you to take us through how a magistrates court might carry out a sentencing exercise in this type of case? The problem is this: on the one side the Government say that if we abolish the suspended sentence, that would encourage more community sentences; the argument on the other side is that, on the contrary, if you abolish the suspended sentence, you will get more immediate imprisonment sentences. So could you take us through how a magistrate might look at a sentencing problem of this sort?

Cindy Barnett:   I do not think that I will produce a particular offence, but let us say that an offence has been committed that is obviously serious and we are considering what to do about it. We must assess the seriousness in terms of both culpability and harm. We add those two together, with culpability being the driving force, and we come to the conclusion that the offence is so serious that a custodial sentence is the only one that can be justified—nothing lower can be justified. That is a provisional view.
Then you reconsider and you may hear personal mitigation and there may be further information. Whatever it is, you are still considering after your provisional sentence and you consider—this is not only in the Act, but in guidance from the Sentencing Guidelines Council—whether or not you can step back over the custody threshold and impose a high-end community sentence. You may then come to the conclusion that, no, the offence is so serious that only custody can do. Therefore, you are prepared to commit the person to immediate custody.
Then the next question that you ask yourself is this: can you suspend the sentence? Again, that is stepping back, and it is very close to—it looks very close to—a high-end community sentence. The guidance is that the requirements that you attach to a suspended sentence order should be fewer or less onerous than those that would be attached if it were a high-end community order itself, because there is the threat of prison—because you have imposed a custodial sentence—and because the consequences of breach are liable to be different, with the immediate sentence being activated upon breach as opposed to more requirements being given if it were a community sentence.

Q 74

David Howarth: Just to clarify this matter, the order in which the decisions are taken is such that the decision to suspend or not comes right at the end?

Cindy Barnett:   Yes.

Q 75

David Howarth: Because that, I think, creates the danger that abolishing the power to suspend will not have the desired effect. Do you see that as a possibility?

Sally Dickinson:   I think that we have to reiterate the fact that in order to impose a custodial sentence of whatever sort, be it suspended or immediate, magistrates must have concluded that the offence is so serious that it warrants a custodial sentence. A suspended sentence order is a custodial sentence—we cannot get away from that. We cannot make it a community sentence by virtue of the fact that the custodial sentence is not going to be served immediately. That is why the removal of suspended sentence orders for whatever types of offences will not affect at all the rate of use of custodial sentences.

Q 76

David Howarth: And it might, indeed, increase the number of people in prison?

Sally Dickinson:   Immediate custody, yes.

Q 77

David Burrowes: Is it correct that, if the provision were passed, and if I came before a magistrate as a joy rider charged and convicted of aggravated vehicle taking in a case in which the damage caused was £4,999, such that the offence was summary only, the magistrate would not have power to suspend the sentence, but that if the damages were £5,000.01, the offence would be an either-way offence and the power would exist? How would your members react to the lack of discretion concerning criminal damage worth less than £5,000?

Sally Dickinson:   I imagine their reaction would be that if that was what the legislation said, it would be a matter for Parliament.

Q 78

Edward Garnier: The trouble is that the legislation is being created, I would suggest, partly in ignorance and partly for political motives. There is nothing wrong with that—it often happens. However, given that under this new procedure there is the opportunity to get your advice, we should be grateful to have that advice. There are three Ministers listening, so if, as an experienced magistrate who represents your association, you have views that you think ought to influence the design of the legislation, I for one would be very grateful if you unburdened yourself of your concerns. There is no point passing laws—this Government pass lots of them—that do not achieve anything. Perhaps you could help us to design a piece of criminal justice legislation that actually does some good.

Sally Dickinson:   Well—

Edward Garnier: I ask you politely.

Sally Dickinson:   I apologise if you feel—

Edward Garnier: I apologise if I appear to be rude.

Sally Dickinson:   The legislation that applies to the amount of criminal damage caused exists elsewhere, of course.

David Burrowes: But there is a summary and an either-way procedure for the same offence.

Sally Dickinson:   Magistrates will seek maximum discretion in sentencing. They do not want to impose sentences or make decisions that an ordinary member of the public might find completely bizarre. However, once legislation has been passed, they are bound by that legislation and will, of course, obey it. Nevertheless, maximum discretion is always wanted.

Cindy Barnett:   Just to pick up on that, in your example about the driver, I think that the bench involved would follow the law absolutely in both cases in relation to sentencing, but would be very aware of the anomaly caused by the legislation. As a general rule, as has been said, we would prefer more rather than less discretion.

Q 79

David Hanson: May I follow up on one more point on clause 10 before the hon. Member for Cambridge continues? The points that have been made will obviously be subject to debate in Committee. However, I was interested in your submission on clause 10, in which you said:
“We accept that there may be a need for further training on SSOs to re-emphasise the fact that they are a custodial sentence.”
That seems to me to indicate that, irrespective of the proposals in the Bill, there are currently some identified problems in relation to the understanding or implementation of suspended sentence orders. Could you outline what those concerns are?

Cindy Barnett:   It is not a question of awareness of problems, but of awareness of statistics, which as we all know can be interpreted in various ways. Numbers are floating around that seem to show that while there is a high number of suspended sentence orders, the number of—I must get this the right way round—the wrong one has gone down. It seems to imply that in some cases a suspended sentence order was imposed whereas, in the past, a community sentence order would have been imposed. The difficult with that is that all cases are different, however, so it is extremely difficult to confirm that impression. We have said that because of the importance of the principle that a suspended sentence order cannot be imposed unless the custody threshold has been crossed, we certainly accept that an element of refreshing in training is always valuable. That is an important lesson that we should have firmly before us on every occasion.

Q 80

David Howarth: May I briefly move on to clause 58, which concerns the extension of powers of non-legal staff—designated caseworkers—in court? Obviously the objections to it come, principally, from the trade unions for lawyers, or the professional bodies, as they are otherwise known. I was interested that the Magistrates Association also has had concerns about the extension of the role of non-professional-body staff in court. I wondered if you could explain the basis of your concerns to the Committee.

Cindy Barnett:   That is a very practical point. We have experience of designated caseworkers who are not able to continue with a case in court because a particular legal point has arisen or there has been a change in the circumstances which they are not able to deal with owing to a lack of qualification, or some other reason. In that circumstance, there is a delay. In some cases it matters less, if you can swap a prosecutor in one court with a DCW in the other; but if there is only one person in a court who is not available to switch over, then a list may simply be shut down, which is absolutely absurd.
Our main concern is that anyone who presents a case to us in court should be sufficiently qualified and experienced to do it well, and not to have to withdraw because of practical difficulties or lack of qualifications or experience. We are very concerned that the extension will cause more problems of that sort.

Q 81

David Howarth: As I understand it, the Government’s position is that that sort of problem will be reduced if the powers are extended rather than left as they are. In practice, at what point or in what sort of case does the problem arise, and could you argue that by giving more power to designated caseworkers, you will come across fewer circumstances in which the particular problem of transferring cases might come up?

Cindy Barnett:   I think that we are talking about the length of pieces of string. We know that problems occur at the moment. Extending the powers would obviously alleviate some of those, but this seems to be a question of extending the powers so that more can be taken on, and is therefore a recreation of the same problem. Unless you are going to give designated caseworkers all the powers of fully fledged Crown prosecutors, in which case there is no difference, there is obviously going to be a gap and a difficulty.

Q 82

David Burrowes: On the subject of referral orders, could you expand on the issue that you raised in your written submission about the lack of discretion in respect of the relatively serious cases of those who have committed first offences; they will receive either a referral order or custody, and there are no options in between for a constructive community sentence?

Cindy Barnett:   Again, that is a long-standing point of ours. We understand the point about a first-time offender who has pleaded guilty, and we operate a limit on discretion at the moment, but we are more and more concerned about the fact that when there is a case that is on the cusp of custody, or merits custody but we could step back, there is nothing that we can do.

David Burrowes: You said the type of cases that that would involve—

Cindy Barnett:   Violence. A robbery case, for instance. There are gradations of robbery. It is possible for that not to result in a custodial sentence in the youth court, although very commonly it does.
If a case merits near-custody, it is extremely serious but we strain every nerve in the youth court not to send young people in to custody unless it is inevitable. If it is a first-timer who has pleaded guilty, our option is a referral order and that simply seems far too far down the scale. Even with promises of it being beefed up and made much more serious, we are still handing the case over to another group of people. That is what our court order entails: we make a referral order and it is sent off for a contract to be drawn up and reparations and things like that. We do not think that the referral order covers it, and we think that if there was more flexibility at the top end, so that there could be a serious high-end community sentence, it would reduce custody figures in the youth court.

Sally Dickinson:   I have to say that that has been our policy since referral orders were first introduced and we have not changed our view in all that time. Magistrates, again, are looking for the discretion and flexibility to use the appropriate sentence and we cannot understand the objections to that policy.

Q 83

Nick Hurd: On that point, I have heard exactly that frustration expressed to me directly by magistrates in Uxbridge. May I press you regarding your statement that you do not understand the response to your policy? What is that response?

Sally Dickinson:   To be honest, the Government appears not to have wanted to move away from having the referral order, apart from at the lower end and the upper end. From our point of view, the response has not been satisfactory, if I am to be absolutely honest.

Edward Garnier: May I encourage you to keep pressing?

Sally Dickinson:   Certainly.

Q 84

Edward Garnier: Thank you. I want to talk a little bit with you—indeed with both sets of witnesses—about the cautioning system that the Government are altering by this legislation. Are probation employers and magistrates broadly in favour of the greater use of non-court disposal by police officers and officers of the Crown Prosecution Service of work that has in the past come before the magistrates court?

Sally Dickinson:   Resoundingly, no. We have a clear position that we think that it is wrong, we do not wish it to be extended and we think that it is wrong that it should be extended to 16 and 17-year-olds.

Q 85

Edward Garnier: What is the basis of your concern?

Sally Dickinson:   In our experience, not just guessing, we have heard too many examples of various types of order—not just conditional cautioning, but fixed penalties and penalty notices for disorder—being imposed for serious offences; offences that we feel merit a court appearance.

Q 86

Edward Garnier: What do the probation professionals think about this?

Christine Lawrie:   I think our observation would be that the sort of people that these kinds of cautions are likely to be applied to are the sort of people that we deal with anyway, and by and large they tend to be unskilled and inexpert in dealing with those kinds of engagements. They are very used to dealing with the police, but they cannot make judgments about whether they are in a situation where perhaps they ought to be pleading not guilty and going to court. They may be putting themselves in a position where they allow themselves to be cautioned, when perhaps they should not.
Although as an association we do not have a particular line on this issue, and in some senses you could say that it takes work away from the probation service and eases the pressure on it, I do not think that we would take such an unprincipled view. We would want people to be almost forced to go through a proper process, so that they get a proper, just treatment. It is not that we want people to get off, but the system should not allow them to make the wrong choice at the wrong time.

Q 87

Edward Garnier: Beyond the point about the growing appearance of the police acting as the court, as opposed to merely gathering the evidence and giving it to the prosecuting authorities for the courts to assess, is there a feeling among your organisations that this informalisation, even among youngsters, is leading to the response, “Well the criminal justice system clearly isn’t all that important and we don’t really need to take the laws all that seriously, if all we get is a caution.”? I appreciate that the modern cautions bring with them additional sanctions if you fail to comply with them, but do you have those sorts of concerns or am I misunderstanding you?

Christine Lawrie:   I would say that there is a common-sense view that—as you see with motoring offences, for example—as offences become just one of the risks of life, people start to take them less seriously. There is an issue of principle about whether you hold the line and say that certain things are so serious that they must be dealt with by a court. It is not just about ensuring that the offender goes through a proper process in their own interests, it is also about the way in which society deals with misbehaviour and offending in general. You are right, there is a risk that you gradually erode that barrier between what is serious and what is not so serious, in the wrong direction. A lot of the people that we deal with would start to see a caution as just one of things that perhaps you get on a night out. I might be paraphrasing slightly, but there is a risk that you start to erode things in the wrong direction.

Q 88

David Heath: Following up on that point, it is interesting that the police appear to take the same view about the conditional caution scheme and echo some of the points made by the probation service. I am intrigued by a statement in the Magistrates Association evidence, that
“There is some evidence to suggest that such measures are not always imposed any more quickly than if dealt with in a court.” 
Given that the principal argument for this scheme is expedition, reducing the workload on the courts and ensuring a quick disposal, what evidence is there to support that contention? It is a very interesting observation.

Cindy Barnett:   It came out of certain evaluations. I am not sure whether they were final evaluations, but they were certainly preliminary looks at adult conditional cautioning schemes. In some cases, putting the conditions in place took more time than if somebody came to court. Conditional cautioning is a more complicated process than a fixed penalty of whatever sort. In itself, it has more time built in.
Going back to the previous point, we would also say that there is an element of confusion and a lack of boundary, particularly for young people in these provisions, because you can go through so many forms of pre-court intervention before you end up in front of a court. That can have two negative effects. First, wild confusion for the young person, who may not take seriously what they ought to take seriously. Secondly, it ratchets up so much by the time the case gets to court a person may not be in a very good position. That is entirely wrong. There are already a great number of pre-court interventions that are not formal. Youth offending teams and police get involved with young people. There are many things, such as acceptable behaviour contracts, that are not criminal sanctions, but voluntary contracts. There is an enormous amount of good work, which we support as much and for as long as possible.
When you get to a conditional caution, you are dealing with behaviour that is deemed serious enough to be dealt with—with strings attached, with lots of things you have to do—and still you are not coming to court. We would say that that is wrong.

Q 89

David Heath: And without the benefit of the advice of the youth offending team?

Cindy Barnett:   We do not know that it would not be, but there is nothing in the Bill that says that it must be, which worries us deeply.

Q 90

Edward Garnier: May I again take you on to the street offences in clauses 71 to 73, which affect both of your associations? I suspect that we see a well motivated attempt to produce a more humane and contemporary approach to prostitution. Clearly, what we are not talking about is anything other than many women who are on the streets in order to feed a drug habit. In the olden days, you had a queue of prostitutes brought before the court and fined £5 one day and £5 the next. Out they would then go to earn that £5. You know the story. What are your views on the counselling sessions that the Government want to introduce to help with the problem?

Christine Lawrie:   It is interesting. That takes me back to being a probation officer 25 or 30 years ago. Then it was reasonably common for prostitutes to be placed on short probation orders for about six months if fines had not worked. My experience of those days is that such a measure had very little impact on them at all. However, times have moved on. We know that there are a lot of young women, as you just described, who are dependent on prostitution because of their drug habit, and there may be quite a lot of coercion behind that. My feeling is that the sessions are generally a good thing. We want to bring those women into contact with somebody who could offer them some help. In the course of doing that, you will pick up a lot of women who choose to be prostitutes and do not want to be helped. That is their lifestyle choice. However, if you can start to reach women who are afraid, need help and do not know how to get it, then that would be a good thing.

Q 91

Edward Garnier: I will invite the other two ladies to respond if they want to. When this measure comes into force, are you happy that your service will be able to provide the necessary numbers of people—either directly through the state probation service or other providers of supervision following the Offender Management Act 2007—to carry out the necessary work once the magistrates have disposed of the case in that particular way?

Christine Lawrie:   My judgment is that there will not be large numbers of women involved. I might be wrong about that, but my assessment is that the measure would be used sparingly and with care, and our view is that we should make those resources available for that purpose. We would have to see how that panned out in practice. If we found that a lot of women who did not want or need help were coming through, then we might take a different view. At the moment our provisional position is that we would rather welcome this than not, and we would then see what the resource implications were—on the basis that my guess is that they are unlikely to be too heavy for us to cope.

Q 92

Edward Garnier: Suppose you were writing a pre-sentence report in relation to this sort of offence, would you advise magistrates not to consider this way of dealing with it until the resources were in place?

Christine Lawrie:   We would certainly want them to take that into account. However, there is an overriding welfare issue in relation to those women—the ones I have described—who are in trouble. Our job is to try to offer some kind of support and assistance to them. Assuming, as I do, that it is not a major resource problem, I think that we are more happy than unhappy with the proposal, although we would want to talk to magistrates about how to screen-in only those women who really need this kind of intervention. Our working relationship with magistrates is vital and helps to control some of the traffic of business from them to us.

Sally Dickinson:   We take a slightly different approach in that we would like to see the resources made available before the measure is implemented. It would make things very difficult for magistrates if they were told, “Find out whether the resources are available in your area before thinking about using this.” Magistrates sitting in one area of the country may have the resources, while those in another area may not. That does not seem to be a fair way of proceeding. We would like to see the resources identified beforehand.

Q 93

Edward Garnier: That seems to be the theme of the Bill, in so far as it has one. The Secretary of State has to certify on a number of occasions that something cannot happen unless resources are available. He does not have to certify whether sufficient personnel or resources are available in relation to clauses 71, 72 and 73, but he does in relation to some of the menu of answers to youth justice issues. Have you had an opportunity to express your views to the Government about the resources aspect of this part of the legislation, other than in your written submissions?

Sally Dickinson:   No, not other than in our written submission. However, this kind of provision where the justices must find out whether resources are available is more common in relation to youth justice, and it makes practical operations quite difficult.

Cindy Barnett:   I would like to pick up on something that was said by Christine Lawrie, which is that we wholeheartedly endorse the fact that we rely heavily on the probation service. We would always wish to have a close relationship with them, and we rely on them for professional advice. However, no sentencer at any level is happy if they arrive at what they feel to be a just and appropriate decision, and are then told that it is not possible because the resources are not there. It makes us very unhappy indeed, and that underlines our worries about the practicalities of the proposal.

Q 94

Edward Garnier: So, would I be putting words into your mouth if I were to draw from our conversation that you would prefer the implementation of some of the sections of the Bill to be delayed until you were sure that there are adequate resources to do the job?

Cindy Barnett:   Generally speaking, we would like resources to be available for everything that we have the legal power to do. I do not think that we will be alone in that.

Q 95

Vernon Coaker: Is the Magistrates Association in favour of the rehabilitative alternative that is being proposed? Do you agree that it is a good measure? Is your point that, although you are uncertain about which resources are available to make it a reality, in principle you think that the rehabilitative alternative is a good one?

Cindy Barnett:   We are certainly not against it. We take the point made by the Probation Boards Association that it will not be something that applies equally to everybody who comes before the courts. In principle, yes, the rehabilitative approach would or could be extremely valuable—as long as it is practical. That was the other point we raised—not just whether there are resources, but what happens if there are three supervised interviews and nothing has happened. What is the consequence of that? Will it make it worse? That is another worry.

Q 96

Vernon Coaker: My understanding is that you would be able to give another rehabilitative order if you felt that that was appropriate or to have used a fine in the first instance if you thought that was more appropriate. Thank you for clarifying that because I just wanted to be clear that in principle it was an alternative that was worth while having available to you, provided that the resources were available to make it happen.

Cindy Barnett:   Yes

Vernon Coaker: Thank you very much.

Q 97

Edward Garnier: Could I ask you about another issue in relation to your powers which is dealing with people who are not before the court? There are new provisions which adjust the default position. The policy behind the new Bill is that you will try someone in their absence, not as a matter of course, but more often than happens at the moment. Is that your understanding of those provisions?

Cindy Barnett:   We are already guided to continue unless there is good reason not to. Nobody would ever wish to do it if there were a shadow of a suggestion that someone had twisted their leg on the way to court. Carrying on in somebody’s absence is one thing; sentencing them to custody is another, if that is the drift of your question.

Q 98

Edward Garnier: It seems that powers are already given to both Crown court judges and magistrates to deal with people in their absence. Perhaps I should have expressed myself more clearly. I am not entirely sure why you need additional powers to do what you probably are doing already. But I am interested to hear what you have to say about the sending of people into custody in their absence, or at least sentencing them to custody in their absence and whether you think that is a particularly sensible suggestion or power to give you.

Cindy Barnett:   It is very difficult decision for any bench to take. As we expressed in the evidence we sent in, we think that because of concerns about doing that, which seems a very major step to take when somebody is not there in front of you, the provision might be underused and there might be an adjournment. And, as we pointed out, there is a provision in the Bill. It is not a question of someone being stopped on the streets and hauled off to prison; they have to come before a court. We are not sure that it would save a great deal of time. For that reason we are not in favour it.

Q 99

Edward Garnier: Are the probation boards concerned that there may be cases where a person has started off in front of the court and then absented himself for one reason or another? Irrespective of the reason why the person is not there, there will be no opportunity to prepare probation advice and pre-sentence reports for the sentencing bench. Is this a concern that you have?

Christine Lawrie:   I cannot honestly say that we have particularly looked at this provision. I am not aware of many cases where people fail to turn up at court. My colleagues would be able to give you figures in a way that I cannot. But I cannot honestly say that we have considered this and it does not figure at the forefront of our minds as a problem. Maybe I should not say this as a probation officer, but on the whole people who deliberately absent themselves from court are rather asking for some kind of penalty to be awarded against them. I do not think that it is an issue that we have particularly thought about.

Q 100

Edward Garnier: Let me put my cards on the table. I sit as Crown court recorder for four weeks a year. Probably in my four-week stint on at least one occasion somebody will simply not turn up. It is normally on my first Monday when I am feeling particularly friendly. You issue a bench warrant or you make inquiries about the absence of the defendant. The problem is not in the court process; the problem is finding a police officer to bring the man or woman in. There seem to me to be practical policing measures which could probably solve the issue rather than writing additional clauses in a Bill giving you powers to do things which the courts seem to deal with quite sensibly anyhow.

Cindy Barnett:   As for proceeding with trials in absence, I agree that the power is there and that it is used. We are guided to consider it, and we do consider it. Certainly we are all extremely keen to move things on and not to have unnecessary delay. That is not fair to anybody. It is the extra step that we are worried about. If we get through the trial, have the report and the necessary information, and custody is an option—and the person is still not there—it is an extra big step to say, “Right, he is not here, but we are sending him to prison.”

Q 101

Edward Garnier: I am sorry to hog this interesting session, but I wish now to deal with tariff setting, recall and the length of time that people spend in prison. That does not affect the magistrates directly at present because, despite provisions of the 2003 Act being intended to increase their sentencing powers to 12 months, that part has not yet come into force—along with about half the rest of the Act, but there we are.
What are the views of the Probation Boards Association on the changes to the law on tariff setting and the recall of long-term sentence prisoners back into custody, and the inter-relationship between the probation boards and the Secretary of State when it comes to release and recall, and what looks as though has greater input from the Secretary of State as a politician to affect the implementation of the sentence?

Christine Lawrie:   I take it that you are referring to clause 16 on the recall of prisoners.

Q 102

Edward Garnier: There is that and other measures in the earlier part of the Bill on tariff setting. Clause 12, “Indeterminate sentences: determination of tariffs”, is rather complicated. It obviously could have a bearing on the release date if there were sufficient courses for the offenders to get on to so that they could go before the relevant release authority and could come out before you had to supervise them.

Christine Lawrie:   As you are probably aware, there has been a marked trend towards large numbers of indeterminate sentences, much more than anyone could have expected. That has had an impact that we did not expect in respect of “silting up” the prisons and creating a demand on both the prison and probation services. We are particularly concerned not so much at the sentencing point, because we accept what we are given by the courts, but on the recall and release from prison after recall. As well as the opportunity to appeal, at the moment there is the gate through which all recalls go, which is the assessment by the Parole Board.
I want to make two points: one is an issue of principle, while the other is a practical issue of demand and resources. The proposals will hinge heavily on the risk assessment that is made by the probation staff member at the point of recall. I understand that that will be the only risk assessment and it will determine whether people fall into the automatic release category, or whether they have to take the additional assessment route. Presumably, most prisoners who feel that they have been unfairly categorised at that point will choose to go through the appeal process. That will put an increasing demand on probation staff to do the paperwork and attend oral hearings when such matters will be contested. That is my understanding of how the system will work.
It will be a particular training and development issue for us to make sure that we get those risk assessments right. It is a skill, but it will also require an element of judgment. We are worried about the demand that it will place on our staff to attend oral hearings and deal with the appeal processes. That demand and resource issue worries us because of sheer demand and making sure that people are absolutely well trained to undertake the right assessments and make the right decisions.
I come now to the wider issue of principle. A few years ago, there was a drive to make sure that the probation service recalled everyone who ought to be recalled. There was a feeling that we did not recall sufficient people swiftly enough. That was a fair criticism; we were a bit too relaxed about matters. Over the past few years, one of the success stories of the probation service has been getting our recall practice right. When I was a chief officer two years ago, we were recalling maybe 20 per cent. of prisoners who were eligible, and I think the number has risen since then.
Since then, I think in order to try to control the prison population, we have moved gradually towards more of a revolving door approach, where prisoners are recalled but come out again to continue to serve their licence period in the community. This is a further move in that direction, as the recall becomes automatic except for the most dangerous prisoners.
The probation service originally would have been quite uncomfortable about the idea of recall being such a central part of our professional work, but it changed its views over time. It gave a real credibility and impetus to that supervision in the community on licence. There was a real threat—if people did not comply, they knew that they were going back—and that helped the work of probation officers in making their relationship with that prisoner stick. Our concern is that although I would not go so far as to say that it will become a game, prisoners will now know that it almost does not matter—that you can behave badly or reoffend when you are on licence and have a 28-day window of opportunity when you can maybe persuade the parole board to let you out, and you will certainly be out within 28 days. That makes it more difficult for probation staff to have an authoritative relationship with those offenders.
I feel uncomfortable about a situation where, apparently to control the prison population, we are doing something that will—perhaps not immediately, but over time—erode the authority that probation staff have over the people who they supervise on licence. Our ability to protect the public hinges on that authority, and it worries me that we are making that a weaker authoritative relationship for another reason.

Q 103

David Hanson: Do you agree that the legislation allows for further recall if behaviour is still poor?

Christine Lawrie:   Obviously, various checks and balances are built in and there is the chance of further recall. Apart from the additional resource implications of the extra burden on the probation service—there will be an extra demand—it gives a particular message to offenders. Until recently, it was clear-cut. The licence was the prison sentence served in the community, and there was little argument about it. That was a healthy environment. Notwithstanding the fact that what you say is right, and that people can be re-recalled, it creates a kind of ambiguity, and that is a bad message to give, particularly to habitual and serious offenders. If we are going to do things about the prison population, which we need to do, from a probation point of view there are other things that it might be better to do. Recall has been such a success story and such a public protection success story that I do not like to see it watered down.

Q 104

Edward Garnier: You mentioned your concerns about the criminal justice policy and the implementation of some of the provisions in the Bill being driven by the need to deal with the prison population. One of the other things that the probation boards and probation services have to supervise, in addition to those who are released early on licence, are those who are released from custody on licence under the ECL system. At the moment they are released 18 days early, if they belong to a certain category of prison, and most of these people are relatively short-term prisoners. Could you explain what the probation service does in the last 18 days of a custodial sentence to help resettle the prisoners in the outside world?

Christine Lawrie:   In those 18 days, not a vast amount can be done. We would try to find accommodation and try to help them find work. We would try to do what we could in that period of time. We would do our best, because that is what we are paid to do, but we would feel uncomfortable about picking up the fallout from trying to chip away at the prison population, which is a good thing. There is clearly an issue that needs to be resolved, but we would say that it is a bigger problem than can be resolved simply by taking small slices of the prison population and giving them to the probation service in a variety of ways. We would argue strongly for looking at it as a whole problem. It could perhaps be solved more imaginatively and sensibly by looking at it as a global problem, not constantly carving out a few prison places here and there by small bits of release and other activity through early release.

Q 105

Edward Garnier: I wanted to ask both groups about the power to evict people from their homes or places of occupation if they are guilty of antisocial behaviour. It is essentially a measure designed to close down crack houses, as I understand it, but I think that the Bill will take it a bit more widely than that.
As magistrates who will be invited to make the orders, are you happy that the social consequences beyond the immediate eviction of the troublesome person have been considered by your association and those whom you wish to influence? Are the probation boards sufficiently enthused by that sledgehammer, or will it create splinters that we need to think about?

Cindy Barnett:   That is not something about which we sent in written evidence. When the first proposals for crack house closure were made in a different piece of legislation, we had concerns relating to the practicalities—in particular, to the benches being given sufficient information. The same point arises here. I do not think that it is for us to comment, except to say that in any case, when we are asked to exercise a power, we must be convinced that it is the right thing to do and wholly justified. If we know what the consequences are, that will raise the bar even higher, but beyond that I do not think we have a view.

Christine Lawrie:   We do not have a particular view. It would concern us only if the people being evicted were people with whom we were working. Clearly, it is a problem with crack houses—

Edward Garnier: I suspect that some probably will be.

Christine Lawrie:   Certainly some of them will, but it is not a problem to which we have particularly given any attention.

Q 106

David Hanson: It has been suggested that we should include in the youth offending order the potential for an alcohol treatment element. Do you have any views on that?

Cindy Barnett:   We are certainly concerned about the effect of the misuse of various substances, and definitely of alcohol. [Interruption.] I am just checking that I have not missed anything. We would generally welcome that. It is an increasing problem, and if some help could be offered, we would welcome that as an extra piece of flexibility.

Sally Dickinson:   On reflection, what we hear from our members more and more is that alcohol is becoming the bigger problem in some areas.

Q 107

Harry Cohen: Can I ask you about the age of criminal responsibility? At 10, it is very low in this country. How does it impact the situation? The Bill contains youth rehabilitation orders. How do the two interact as far as what you have to do, particularly the magistrates’ side of things? For a younger age, are there certain aspects of the YROs that you would use, as opposed to others for a later age?

Cindy Barnett:   Yes, there are. At the moment, we can have 10, 11 or 12-year-olds in court. It is not a pleasant experience. We have powers that we can use, which are to some extent replicated or renamed in the youth rehabilitation order. It comes back to the general point. First, we are wholly in favour of as much diversion as possible before youngsters enter the criminal courts, and the younger the person, the stronger that feeling is. Secondly, we desire as much flexibility as possible in sentencing, so that we can tailor whatever sentence is necessary if they do arrive before us and we must deal with them, rather than being in any sense straitjacketed or fettered. Again, the younger the person, the more we would like that flexibility.

Christine Lawrie:   We are an adult service; we do not really have a view about the age of responsibility.

Edward O'Hara: If there are no more questions for this panel, I thank them for their contribution and invite the next set of witnesses to take their places.
I invite you to introduce yourselves.

Jan Berry:   My name is Jan Berry; I am the chairman of the Police Federation.

Adele Kirkwood:   My name is Adele Kirkwood, also of the Police Federation.

Edward O'Hara: Thank you very much. I think that Philip Hollobone wishes to lead off.

Q 108

Philip Hollobone: In line with your direction to concentrate on the latter part of the Bill if we can, Mr. O’Hara, I am particularly interested in part 11, “Special immigration status”. I know that that is not something that the Police Federation concentrated on in written evidence, but I wish to draw out from the witnesses the position, as they understand it, on the apprehension of illegal immigrants at large in the United Kingdom. I want to ask about that because it seems to me that there is a good opportunity in the Bill, if the current law is not satisfactory, to tighten up what I believe is a loophole.
There was a case recently in Northamptonshire in which 16 illegal immigrants jumped out of the back of a lorry. Three were apprehended by Northamptonshire police, who telephoned the Border and Immigration Agency only to be told that they should encourage those three people to make their own way to the immigration office in Croydon. You can understand the outrage that that caused in Northamptonshire. I want to ask for your association’s view of how the law is meant to operate and how it actually operates in practice.

Jan Berry:   That is an accurate description of what is taking place in many areas of the country, where there is not necessarily any provision for people to be transported to the different centres. When we call up, that is exactly the advice that we are given. We encourage people to get on a bus, train or other form of transport, and surprisingly very few actually reach the destination. It is certainly something that our members have said to us is of concern.

Q 109

Philip Hollobone: So you have no power to hold these people.

Jan Berry:   I am not sure whether we have a power, to be absolutely honest. I would have to check that. Even if we had a power, it is about having the resources to do that. If an expectation is placed on the police to keep people in custody and then transport them through the country, it will be extremely resource intensive. As we have pointed out, while we agree with many of the aspects of the Bill, there are a number that will have significant resource implications for the police service. We will start to become the first point of call, rather than the last. If immigration cases are going to be transported around the country by the police, I do not think that we have the number of people to do that and the other jobs that we are expected to do.

Q 110

Philip Hollobone: My second question on immigration issues is based on evidence submitted by your colleagues in the Police Federation who have recommended the creation of legislation that would allow a constable to demand of a person proof of identity when the constable had grounds to believe that the person in question intended to enter or leave the United Kingdom. In their evidence, they say that, currently, officers only have the right to request to see passports, and that many individuals—for example, those subject to a football banning order—are acutely aware of that and decline. Is that a concern that you share?

Jan Berry:   Yes, we have proposed that particular change on several occasions. Unfortunately, it has not been taken up and included in a Bill. Sometimes I think that Bills going through do not have the time for additional clauses to be added. In some cases—particularly with football banning orders—we do not have the power to demand a person’s passport, even when we suspect that they might be wanted on warrant. It seems absolutely ludicrous that we have automatic licence plate recognition systems going in and out of all of our ports and airports these days and that we can tell whether the vehicle has a certificate of insurance or an MOT and who the keeper is, but we cannot ask for their passport. Well, we can ask, but we cannot demand, and I think that that is the important word.

Vernon Coaker: The point of having these evidence sessions is obviously to collect evidence. Part of the point of Mr. Hollobone raising that issue was so that I heard it in front of Jan Berry, so I will look at this issue.

Edward O'Hara: That is useful.

Q 111

Philip Hollobone: I am most grateful for the Minister’s response.
In your view, does the extension of the adult conditional cautioning scheme to young people aged between 16 and 17 offer the chance to deal with low level offending in a way that ensures that offenders receive the right level of intervention?

Jan Berry:   I think that it can do. We are reasonably supportive of the conditional cautioning system for adults and that has been piloted in several areas. I have to say that it has increased bureaucracy in some of those areas and that needs to be addressed if we are not going to add more paper to the system because papers are flying in all directions.
As far as juveniles are concerned, I think that there needs to be a menu of different sanctions and options with which you can keep young people out of the criminal justice system as much as possible. More importantly, you should focus them in areas where they are going to receive rehabilitation and the support that they need within the community.
I think that a conditional caution provides more opportunities than a severe talking to on one occasion because you can add certain conditions to it, but it does keep that young person out of the court system for a little longer. I do not think that it is suitable for every young person, but it is an option that has been made available to adults and it is an alternative sanction that will keep people out of the courts and therefore speed up other court proceedings. However, I do not think that it is the perfect solution for adults and I do not think that it is the perfect solution for 16 and 17-year-olds either.

Q 112

Philip Hollobone: Are Crown Prosecution Service prosecutors suitably equipped to deal with youth conditional cautions?

Jan Berry:   Our view is that as a matter of constitutional principle it should go through magistrates. We have found in the pilot schemes that there have been some delays in imposing conditions, which makes a mockery of speedier justice. Therefore, our view is that, as in many situations, if you can get the person to a magistrates court quickly, it will have greater authority. You do not need the whole court case so you do not have the bureaucracy and all of the paperwork that goes with that. I also think that it means a little bit more to the person who is subject to the hearing.

Q 113

Philip Hollobone: What role do you expect youth offending teams to play in the youth conditional cautioning scheme?

Jan Berry:   That would depend on the requirements of the particular youth, but in many areas of the country there are superb youth offending teams that are working really effectively and have some creative ideas for how to keep young people out of crime. When a youth offending team works effectively—there are areas in which they do not—it is vital that they are part of the decision-making process on the right course of action for a particular person. It is extremely unlikely that the team have not met such a person—they are more likely to have seen the young person a few times—and they will be the best people to determine what will work for that person, and to find out what is available in their area.
One of the other issues on availability is that, although you might have some good programmes in a given area, there might be insufficient places. The youth offending team would be in the best place to find out what is available and what is most suitable to a young person.

Q 114

Philip Hollobone: In that regard, how would you expect the cautioning scheme to interact with the final warning scheme?

Jan Berry:   I do not know how it will interact with the final warning scheme, and I am perhaps not best sighted on that issue.

Adele Kirkwood:   The only thing I can think of is that a youth offending team would have had some involvement with a young person if they had received a final warning, but I am not otherwise sure how the two things would interact.

Jan Berry:   One of the dangers of the final warning scheme and cautioning has been a reluctance to put a young person before a court, which I fully understand. However, sometimes that is to put off the inevitable, and if you continue to introduce new schemes that ratchet up previous schemes, you might not address the real problem.
There needs to be clarity in the provisions, which is why we tend to support rehabilitation orders, because they bring all things under one heading but still give youth offending teams and others the option to choose the most appropriate sanction for a person in their particular circumstances.

Adele Kirkwood:   The only other issue that I would raise on conditional cautioning is that you could have a situation in which a person fails to comply with the conditions and ends up before a court. Under the Bill, the CPS will decide those conditions. A person might never appear before a court for the original conditional cautioning offence, because the decision has been made by the CPS and the police enforce its decision. If there is a failure to comply, a person could end up before, and receive a sanction from, the court, without the court knowing of their substantive original offence. In such a case, the court would be dealing with the cautioning, which is why we would like a move toward making magistrates the people who set conditions.

Q 115

Philip Hollobone: What is your reaction to the proposal to introduce a new criminal offence for inciting homophobic hatred?

Jan Berry:   Clearly, there is no place in society for that type of behaviour, but there is a huge problem with policing it because it is a matter of interpretation. The offence of incitement to racial hatred has been policed quite reasonably. Many of the scare stories have not come true because it has been policed sensibly. The same kind of interpretation would need to be applied to homophobia, otherwise you would be giving police officers the responsibility of making a decision about a comment, which could be a joke or a sermon or, as we have seen in today’s newspapers, a minister making a comment on an internet site. Such things could be covered by the Bill if proper guidance is not provided. I do not think that that is intended, so the drafting of the Bill needs to make the intentions clear.

Q 116

Philip Hollobone: In that regard, what is your reaction to the potential for extending the proposal to include hatred against transgender and disabled people?

Jan Berry:   We saw the proposals this morning and have not taken a view about extending the measure. I do not think that we have a view one way or the other on any extension. All I would say is that, if it is included in the criminal law, we would ask that the interpretation be very clear, because it is the police officer on the street who will be expected to be able to interpret that and, if they do that in the wrong way it could inflame situations and people could very quickly get into polarised positions, making a mockery of what we were seeking to achieve in the first instance.

Edward O'Hara: I would like to bring a Minister in on this point. Maria Eagle.

Q 117

Maria Eagle: Obviously, at present you have not had the advantages—nobody on the Committee has—of seeing the draft of the clause as it is intended. However, you seem to be saying that the provisions in respect of incitement to racial hatred are well understood and work well. Is that your experience?

Jan Berry:   I would not say that they are well understood. I think that they are working fairly well at the moment because people are being very careful in how they are using that piece of legislation and I think that that is very sensible. If that is applied to homophobia, there is no reason at all why the same situation would not apply.

Q 118

Maria Eagle: So your position would be that as long as the provisions are clear, sensible and strike an appropriate balance, that would assist your members in their enforcement of the legislation.

Jan Berry:   Yes, but at the end of the day we must allow police officers to use their discretion as to what is the most appropriate way of dealing with a particular set of circumstances. In not every single set of circumstances would it be appropriate to interview a person, let alone take them to court for such an offence. It would have to be in a more extreme case so that, as you say, you deal with it in a balanced way.

Edward O'Hara: I have a lengthening queue of Committee members who wish to come in and I think I ought to call some now. Phil Wilson first.

Q 119

Phil Wilson: I just want to ask a couple of questions in respect of the antisocial behaviour part of the Bill. On closure orders, if premises are closed down, do you think that the problem could just be displaced to another area or on to the streets so the problem itself is not actually resolved?

Jan Berry:   Yes. There are occasions where, in not closing a premises down, you are also committing the same offence, to a certain extent, because you are allowing it to continue. But, again, I do not think that this is a power that would be used lightly. Apart from anything else, if you are going to close premises down, depending on the size of those premises you need a fair number of resources actually to achieve the closing down.
This is something that happens at 2 am, where a rave or a drugs den is identified. You would rarely decide there and then that you must close it down. In many situations you would have the time to prepare and get the resources to do that. In that preparation, part of the assessment of whether it needs to be done would be whether you are just going to move the problem to another place. That would need to be taken into account, but it would need to be policed, because closing a place down does not take away the problem from the people who might be living in the vicinity of the place that you are intending to close down.

Q 120

Phil Wilson: I have a couple of other points. Are you satisfied that these orders, when they come into effect, will not unfairly affect children, for example?

Jan Berry:   This is another area where you would need to take that into account in any planning. If it is something that has to be done quickly, clearly you would need to take account of children. But most of these cases will be well-planned operations. We will know in advance if we anticipate children being on the premises and we will take the actions that you need to take.
We rely on other partners, because at the end of the day we are police officers and we do not necessarily have the ability to house children and other people who may be removed from those premises and need to be put into safety. But we have partners who will assist us in that process. I would anticipate that that is part of the planning process. That does not make it easy, but that is why we need to involve partners when acting in this sort of way.

Q 121

Phil Wilson: Just one more point. In your submission, in paragraph 20, I think, you highlight that closing down premises in an effective manner is a resource-intensive exercise. Could you just amplify that a little bit?

Jan Berry:   It depends on what type of premises we are talking about and where they are, but if they were in a residential area and were a substantial hall or something like that, depending on how many people were there, you would probably need in excess of 200 officers to close them down. It really depends on the nature of the premises. A couple of years ago, when we had one of the terror threats, there were lots of comments about how many police officers were either at the scene or in the vicinity. If we had literally to close off a whole area, 250 police officers would go nowhere, so we should not underestimate the resource implications. If you have to close an area or building down, you need a number of officers to protect people going in and prevent people going out. You need to have people to deal with every single person in there, so there is an audit trail of everything that takes place. When you are making these rules, these are not actions that we will take lightly, because we will need to ensure that we have got the resources to deal with them. Otherwise, we could make the situation worse by attempting to close down premises when we do not have the resources to deal with the implications of that.

Phil Wilson: But, in principle, you generally agree with it?

Jan Berry:   I think that if we have the power, we can use our discretion as to whether we need to use that power.

Adele Kirkwood:   In fairness, when the initial consultation came out on this issue, we did some work with our Scottish colleagues, who have this power, and they felt that it was appropriate and that it worked well on the occasions that they used it. One of the responses that we gave to the initial consultation was about having a magistrates court make that decision, because it would include a number of key stakeholders. With nuisance neighbours, for example, a number of stakeholders would have a lot of discussions and try to solve the issue in other ways. This would be a last resort. That is why we felt that it was important to have a magistrate’s involvement, so that all those issues could at least be considered by the court as well.

David Heath: I would like to deal with quite a narrow issue in clauses 104 and 105: the provisions on NHS premises. This ought to be a no-brainer. Obviously, no one wants to see disorder in a hospital, and we want to have effective offences, but the more I thought about it, the more difficulty I have in understanding what is missing at the moment. Are there instances in which your members are asked to attend hospitals in response to disturbances or potential assaults on NHS staff and feel constrained by a lack of existing powers?

Jan Berry:   No, I do not think that our officers do. I think that this is more directed at protecting NHS staff. What it does is to make a separate offence, so that if a person refuses to leave, having been asked to do so, it provides us with not an aggravating factor, but certainly an actual offence. I think it sends an important message to NHS staff, who face the most awful circumstances, and not just on Friday and Saturday nights, that we care about them. We have an offence of assaulting a police officer, which I would not want to disappear from the statute books. I think that all public sector workers should be properly protected by the law, because they perform extremely difficult tasks, and it would send an important message to them that we actually care about what is happening to them.

David Heath: I certainly would not argue with that. I just wonder why it is so constrained, in that case, because many people in public service face the same sort of threats and risk of disturbance in other contexts. This particular provision applies only to hospitals, rather than all NHS premises, so GP surgeries are not, I am afraid, covered by this offence.

Jan Berry:   No; I take your point. From our perspective, we probably have 20 or 30 times more problems in hospitals than we ever do in doctors’ surgeries, so I suppose you focus on those premises where there is a particular problem. However, you are absolutely right about the general principle. In evidence that we have given on other Bills, we have suggested that there should be a specific offence of assaulting emergency service workers. Fire officers are in exactly the same situation. People outrightly obstruct them when they are trying to undertake their functions.
The provision is specific to the national health service. We support it, but I take your point that it could go further in certain circumstances.

Q 122

David Heath: There is an argument for aggravated offence, which I believe you mentioned.
I am sorry, but there is a further practical difficulty. This is a small point, but it would be helpful to have a professional view. There is an exemption for a person who is obtaining medical advice, treatment or care. Most people on NHS premises fall into that category. Do you think that a police officer attending a hospital would be able satisfactorily to ascertain whether the person is attending for care, treatment or otherwise, and at that point therefore would not be able to use the offence? Is that a difficulty that is unnecessarily prescriptive?

Jan Berry:   I suppose that the science of hindsight will tell the police officer whether the person was receiving medical care. We do not go into hospitals unless there is a reason for us to be there. Very often, we go in to deal with one incident but then the problems tend to stack up in the evenings and it is difficult to get out of the hospital again. In that situation, I do not think that any of my colleagues would act without the guidance of the medical staff. We work very well in co-operation with them.

Q 123

David Heath: I am surprised that you do not see a difficulty in this exemption, because a person who behaves appallingly at the hospital has only to be there for the purpose of obtaining care to be exempt from the offence.

Jan Berry:   The circumstances and people’s interpretation of them may dictate what happens. We always have to ensure that safety comes first. Public safety comes first, and there are times when we have to remove people who are causing more problems than is absolutely necessary from hospitals. If the person is suffering from an injury or an illness, it makes our job extremely complicated, but we owe a duty of care to them, to the other people in the hospital and to the NHS staff as well. It is very difficult for police officers to try to balance those different duties.

Q 124

David Heath: I just need to be persuaded that the Bill does not make it more difficult rather than less.

Jan Berry:   I would much rather send a strong message to NHS staff that we are there to support them.

Q 125

Edward Garnier: I can probably help David Heath. Clearly, no police officer wants to be accused of interfering with the medication or the application of medical treatment to someone who then, because of his removal, comes to some harm. Obviously, that is a liability issue that is of concern to the police.

Jan Berry:   We know of the tragic outcomes in such cases, and we do not want them again. That is where the science of hindsight comes in, and that is why police officers must always act under professional advice, which, in this case, should be within the hospital.

Q 126

Edward Garnier: I fully sympathise with the need to protect health staff and people working on NHS premises and so forth, just as one would want to protect people working in the Department for Work and Pensions offices or on the public transport system. That is not an issue. But are not the outlined offences in this part of the Bill already covered by existing legislation? You can arrest a man for acting in a way that breaches the peace.

Jan Berry:   That is absolutely correct.

Q 127

Edward Garnier: So are we just writing friendly legislation because it looks nice, or do you think that it has a practical purpose?

Jan Berry:   As we were saying earlier, it sends an important message to NHS workers that they should not have to put up with that type of treatment. They feel very intimidated by the way in which they are treated. To have an offence that says “You will not assault a national health service worker” sends an important message. You are absolutely right that there is probably an abundance of other pieces of legislation that would cover the offence, but this is about signalling support for the NHS.

Q 128

Sally Keeble: I wanted to ask about the proposal that you mentioned, which has properly been put forward as an amendment previously and presumably will be again and which is about giving police officers a power to require people to produce passports. How would that work?

Jan Berry:   At the moment, we do not have the power to demand to see a person’s passport, so if we suspect that a person might be on a football banning order and they are making their way to the airport, we have no mechanism to stop them to check that they are the person who is subject to that football banning order. We have the power to demand names and addresses in so many other situations. Particularly when we were leading up to the last football competition—wherever it was and whatever competition it was—on the continent, we had great difficulties in being able to enforce some parts of that, because we did not have the powers.

Q 129

Sally Keeble: But there is no requirement on people in the UK to have passports and at present we do not have ID documents. People who evade border controls certainly do not have any papers usually, so how practically do you enforce it? The next part is: what is the sanction? I agree you do not want police stations full of people who have been picked up for not having passports.

Jan Berry:   I do not think we are looking to take over the border authorities’ responsibilities. It is at the points of entry to and leaving the country that we are asking for this power. I do not anticipate that it would necessarily be used throughout the whole of the United Kingdom.

Q 130

Sally Keeble: Can we just go back, because it is quite an important point? If people who evade border controls and appear in the country are asked about what sort of papers they have but they do not have any, at present there are no powers to oblige them or that the police have to insist that they produce any. How would you, then, practically deal with somebody? Would you require them, as with showing their driver’s licence, to come back at a later date, in which case you have the problem of them hopping off and disappearing and you not seeing them again? Or would you have an ability to take them to premises? How would you practically deal with them?

Jan Berry:   This is about dealing with people who know exactly what the law says and who know that we can ask but cannot demand, so you get different variations on: no, they are not going to tell us who they are or anything else. We are then left with a situation where we can use a different piece of legislation to try to establish their identity to see if they are wanted on warrant or if there is a football banning order or another measure. However, it would be far simpler if, since they should have some form of identification if they are leaving or coming into the country, because they cannot travel without that, we could then look at that.

Q 131

Sally Keeble: Legislation has to apply to the whole country, not just the borders, so if you have a requirement on people to produce a passport or, almost by definition, ID at the borders, the same rule would have to apply in-country, so the people who had jumped off the back of lorries or whatever else would be required to do it in the middle of the country, miles away from the border. How would you manage that kind of power? I understand completely what the issue is: it is trying to find a way to deal with it that does not end up with you having to arrest people and take them to police stations.

Jan Berry:   I take that point and I do not think I have the solutions here, but I think the Minister said that he would be happy to look at it, and we would be happy to work with him to ensure it did not cause the problems that you suggest but at the same time provided police officers with the power to police some of the issues that currently we cannot police as thoroughly as we would like to.

Q 132

David Hanson: I want to ask a question relating to the submission that you made in connection with youth rehabilitation orders. In paragraph 5 and the conclusion of your helpful submission, you say that for the purposes of compliance with the youth rehabilitation order, you wish to see a clause added to the Bill to enable the use of reasonable force for those with custody of the relevant person or parental responsibility. I should welcome an outline of your initial thinking on that.

Jan Berry:   This is not a normal thing for the Police Federation to propose; we would not normally suggest it. However, some of the young people whom we expect to be deterred or rehabilitated need some control. Police officers have some authority already, but they are not always there. The young people’s own parents sometimes, because of their age, should be able to use reasonable force. We are not asking for anything more than reasonable force.

Q 133

David Hanson: Again, so I am clear, in connection with the youth rehabilitation order, let us say, for example, a court determined that a young person would have a drug testing requirement as part of the order. Are you suggesting that we should legislate for parents, foster parents and guardians, as you said in your paragraph 5, to be able to use reasonable force to ensure that the children and young persons comply with the order?

Jan Berry:   That would not be an appropriate use of reasonable force.

Q 134

David Hanson: I am just clarifying that point, because that is what you said in your submission to the Committee in paragraph 5. Is it something that you would support? If you suggest in the proposal that that amendment would be forthcoming, the Committee might table it, and I as a Minister would have to respond to it. I am just interested in your logic and thought process.

Jan Berry:   I take your point entirely. When the suggestion was drafted, that was not its intention. The intention was not related to drug enforcement orders.

Q 135

David Hanson: May I test you further?

Jan Berry:   Yes, go on.

Q 136

David Hanson: The suggestion is in a submission, and it may come to me, as a Minister, in the form of an amendment, because you have suggested it. I am interested in whether you think any youth rehabilitation order—the activity, programme, curfew, exclusion, residence, local authority residence, fostering, drug treatment, drug testing, education or mental health treatment requirements, or indeed the residential exercises for up to 90 days—is a context in which it is suitable, as paragraph 5 says, for “parents, foster parents or guardians to be able to use reasonable force to ensure their children and young persons comply with the orders”; or, as in the proposed additional clause, a context in which it is suitable for those having custody of the relevant person to use reasonable force to comply with the order.

Jan Berry:   I do not. I cannot conceive of any of those. I can see that preventing a child from breaching an order might be where we were probably coming from, as opposed to enforcing the order. That may be bad drafting.

Q 137

David Hanson: Just so I am clear, Ms Berry, because it is an important point to clarify for myself, in the event of a young person, for example on a drug testing or treatment requirement, breaching that order, are you saying that, according to the amendment that you may wish to see forwarded, it would be appropriate for a parent to use reasonable force to stop the child or young person undertaking that breach, and that the person with responsible custody of that young person, such as a youth offending officer or somebody else with responsibility, should be able to use reasonable force to prevent the breach of an order?

Jan Berry:   That is my understanding, yes.

David Hanson: Okay. I just wanted to clarify that point.

Q 138

Charles Walker: Thank you. On violent pornography, I broadly support the Government’s clauses, but of course we must ensure that the legislation is right. We all remember what happened with the Dangerous Dogs Act 1991, which was legislation off the back of a tragedy. I should like to explore where you see the strengths and perhaps weaknesses in clauses 64 to 67. Where do you see the problems?

Jan Berry:   Policing this is enormously difficult, and a tremendous amount of work has taken place with the IT industry and abroad. However, where the offence is committed is probably the most difficult part of pornography. I am not quite sure if I really understand your question—

Charles Walker: You are doing fine.

Jan Berry:   Where the offence is committed is probably the most difficult part. Although we co-operate with some countries, we have very little co-operation with a variety of others. We have had some discussions recently with Jim Gamble from—

Vernon Coaker: The Child Exploitation and Online Protection Centre.

Jan Berry:   Thank you. We are very keen to work with them and to understand better how we can help. I do not think that police officers fully appreciate that, on many occasions, when they go to the scene of a very innocent-looking incident, grooming or something else related to child pornography has taken place there.

Charles Walker: I am referring to violent pornography between adults.

Jan Berry:   Oh, I am sorry. I thought that we were talking about children.

Q 139

Charles Walker: I see a problem, because huge numbers of images are available on terrestrial television of violence towards women and of violent pornography. A series called “Wire in the Blood” routinely depicts what I would call violent pornography and violence towards women. There are films on general release in cinemas, such as “Hostel 2”—I have no intention of watching it—which is an hour and a half of brutal, violent pornography towards women. I am struggling with how this is going to work. How can you make taking stills from “Hostel 2” a criminal offence, but pass the film and give it a classification? Do you see what I am saying?

Jan Berry:   Yes, I do.

Q 140

Charles Walker: As drafted, right now, if someone were to take stills from “Hostel 2” and have them on their computer, it could be deemed to be a criminal offence, because a court might decide that they were purely for the purposes of arousal. However, the same things, as part of a film that has been passed, would not be in contravention of this proposal. I see problems and contradictions there and was wondering if you did too.

Jan Berry: I am not sure that I see contradictions. This is a particularly difficult area to police, because of, as you say, the way in which it could be interpreted. As a matter of principle, I think that it is appropriate for the criminal law to set the standards of behaviour in society. I think that, as a result of violent videos, whether involving children or adults, people’s behaviour has changed.
Some might say that what adults do in their own time and in their own place is down to them, but when that starts to feature in films and videos, it starts to impact on other people. It is appropriate for the criminal law to try and deal with some of those areas. I do not pretend that that is simple to describe. It is even less simple to interpret. Again, although my colleagues might come upon such issues during the course of their normal duties, any prosecution from such a case would be considered at length. I cannot see anybody being prosecuted unless it was felt that there was sufficient evidence and something more than, as you say, the arousal.

Q 141

Charles Walker: May I ask one question, and I hope that I am not ruled out of order for doing so? You touched on a very important point: the amount of violent images in society at large. One of the justifications for bringing forward this very worthy set of clauses is the fact that people looking at violent pornography could commit violent acts—there could be a link between looking at that pornography and committing a violent act. I think that when you answered the question, you said that more general violence can have implications. For example, we know that there are many hugely violent video games in which casual murder is glorified. Do you see that as an area of concern as well? Huge numbers of young people are being knifed and gunned down on our streets. Do you think that there is a link between that and our casualisation of violence at a societal level?

Jan Berry:   I think that we are becoming desensitised to violence and I think that it takes more to shock sometimes, because of what people have become used to. There is no doubt that there are some people within society who are more susceptible to watching something and then going out and doing it. There is a whole host of other people who can watch exactly the same programme and it will not make any difference to them; they are able to rationalise it. However, if it is a person who cannot rationalise what they are seeing then, yes, it can have an effect on their behaviour. There is no doubt about that.
Police officers will deal with incidents, from the very minor to the very major, where they can see a programme on television, or watch a film, and you can guarantee that over the next few days you will have to go and deal with incidents like that. It ranges from very minor incidents, such as people throwing stones off motorway bridges; the following day, there will be cases of people throwing stones off motorway bridges. Most people will rationalise that; they will think that it is stupid, do not do it. However, those people who cannot rationalise it in that way can be and are affected by what they see on the screen.

Q 142

Charles Walker: This is my very last question, Mr. O’Hara. There is a definite link between child pornography and offending; that has been proven. Have you seen the same evidence—beyond anecdotal evidence—to suggest that there is a definite link between violent pornography and offending against women, and between violent video games and offending against the individual, whoever that individual may be? Is there that same body of evidence connected to those two issues that I have raised as there is connected to child pornography, for example?

Jan Berry:   I can only speak from personal experience; I have not studied this area. However, I am certainly aware of people who have been brought up with that type of background who then, very easily, find themselves in that type of behaviour later.

Q 143

David Burrowes: I want to pick up on the responses to the Minister concerning the homophobic hatred proposal. You expressed support for an additional law in relation to homophobic hatred. Could you give specific examples from police members about the type of incident that are not presently covered by legislation that would need, and indeed would justify and form the basis for supporting, an additional law on homophobic hatred?

Jan Berry:   I do not think that I can give you very many examples, other than to say that I think that this is another area where the law can be seen to support particular people. There are probably hundreds of pieces of legislation whereby, if a person is inciting hatred, there would be an offence somewhere that would cater for that. Somehow, however, when it is inciting hatred around race or around homophobia, it adds another dimension to that particular hatred and I think that the law has to recognise that. Particularly with many aspects of homophobia, it is not something that is easily seen by the eye and therefore it can have a greater effect on the person who is on the receiving end of it.

Q 144

David Burrowes: In terms of evidence to justify additional pieces of legislation, it would be useful if you could give examples from your membership to back up your support for this legislation, coming up with specific incidents that, if you wanted to support the additional legislation, would no doubt be out there to justify it.

Jan Berry:   We have two ways of dealing with this. I have been a police officer for too many years now and I can remember when homophobia was not outlawed in the way that it is today, and where sexual orientation was outlawed, and where police officers spent far too much time enforcing laws around sexual orientation. Today that does not happen, so there has been a sea change in how police deal with this particular area, and rightly so. A lot of my members are gay and the type of treatment that they are given, sometimes within the service and hopefully we are resolving that, but more importantly outside, where it is known that they are gay, is outrageous. They have to deal with enough difficulties without that being added on top. I think that those are some of the examples that we would give.

Q 145

David Burrowes: You mentioned that racial hatred provisions are clear and well understood. Are religious hatred provisions that are now in force also clear and understood?

Jan Berry:   I am not sure that I did say that racial hatred provisions are clear and understood.

Q 146

David Burrowes: You said that the racial hatred ones are not clear and understood?

Jan Berry:   No, what I said was that I think that they have been used very sensibly and sensitively. I think that some of that is because people are scared to use them, because they are not quite sure how to deal with them. For that reason, I think that they have been used sensitively. That might be, if you like, reverse logic. So, whatever power that you give to the police service, you must be very clear about what you expect them to do, because these are very sensitive areas.
I have had to facilitate a dispute between the Christian Police Association and the Gay Police Association over a difference of opinion. If one of those groups were able to say that that was a criminal offence, it would add another dimension to having different views. It is a difficult area. When there is clear incitement for hatred, that needs to be dealt with, but when people are using their right to free speech, that is different.

Q 147

David Burrowes: Moving on, has religious hatred provision also been dealt with sensitively and do you recognise the freedom of speech provisions that are protected within that?

Jan Berry:   Again, it is very finely balanced. It has been dealt with sensitively in the main, but that is largely because people are fearful of overreacting and of the implications of such an overreaction.

Q 148

David Burrowes: Is there a need for clarity in that area? I am aware of Association of Chief Police Officers’ guidance and hate incident reporting procedure.
A number of incidents have been reported over the last few years. We have received evidence of some examples, such as that concerning the Bishop of Chester, who was investigated by police for suggesting that gay people could reorientate to heterosexuality; Joe and Helen Roberts were interrogated by police over concerns about the local council’s gay rights policy; Sir Iqbal Sacranie, and so forth. Those incidents have been and are being investigated by police.
Is there a need, whether it is in legislation or in guidance, for some clarity in order to establish the areas of freedom of speech and of criminality—the mindless acts and intentional threatening acts that we would all want to outlaw?

Jan Berry:   I am not sure whether the examples that you have given illustrate the need for legislation in the area. I think that they are an example of the fear of how we use discretion today. I do not think that police officers feel that they have the discretion to take a certain course of action; we have become risk averse. People are scared of the consequence of not acting, so they feel that they have to be seen to do things a lot of the time.

Q 149

David Burrowes: Would you appreciate guidance to assist with that problem? How can it be countered?

Jan Berry:   I have no problem with guidance, provided that it is not written in such a way that removes discretion from the police officer. Police officers must be allowed to deal with situations as they present themselves. If there are too many guidelines, the officers’ hands are tied as to how they should deal with the situation and that level of discretion is removed. Police officers need to be allowed to make decisions using common sense and discretion, without fearing that their decision will be finely examined and criticised afterwards. That is why police officers stop doing certain things.

Q 150

David Burrowes: Finally, when we are ready to legislate on the issue of homophobic hatred, which particular components of that offence would you want clarified as criminal or not criminal?

Jan Berry:   The definitions that we have used thus far for hatred could equally be used for homophobia. Incitement is the key, and you would have to be very clear on the circumstances under which it would not apply, particularly with regard to the area of religious belief.

Edward O'Hara: Before I call Harry Cohen, I want to bring in the Minister.

Q 151

Vernon Coaker: I have read the submission about the police in part 10. Are there are any further comments that you would like to make about the changes in police misconduct and performance procedures?

Jan Berry:   I am grateful for the question because the Police Federation has worked very hard with ACPO and all partners, including the Home Office, to draw together rules and regulations which have the development of officers as their basis. Of officers who do not do their job properly, 99.9 per cent. of them want to be able to do so. So this is about reviewing how to do something and how to do it properly. There has been much comment about lazy and incompetent police officers, but those I have worked with are neither lazy nor incompetent. Yes, like anyone else, we can make mistakes. The rules and regulations should identify that, giving one the opportunity to improve—and if one does not take that opportunity one may in the fullness of time become a liability. That is when one’s service should be dispensed with. I hope that ACPO uses these new regulations in the way that is intended, allowing us to get on with the job but also encouraging people to develop and to learn.

Q 152

Harry Cohen: On prostitution, the National Association of Probation Officers speaks of a treadmill of orders, failures to attend, further orders and then imprisonment—and round and round they go. I think of the referral orders, detention and other such things in the Bill. The association estimates that something like 11,000 women a year are being criminalised as a result. Do the police see it like that?

Jan Berry:   Not necessarily, although if we keep adding offences it can become a very complicated area. Legislation should try to rationalise matters. Adele has dealt with many of prostitution offences. Do you want to say anything?

Adele Kirkwood:   The main thing is that the police service recognises how important it is to assist those women who are carrying out what they are doing. It is not just about criminalising them. I know that many of my colleagues try to link them to other agencies, to try to get them out of what they are having to do. Sometimes it is not easy, but we would always try to do that rather than to criminalise them.

Q 153

Harry Cohen: The previous Home Office team issued a report on prostitution which suggested safe houses—basically, two or more working together. It seems that the idea has been dropped. What is your view of that proposal? Could it be part of a package to deal with prostitution?

Adele Kirkwood:   Our main concern was where they would be. It might be a safe house if there are two or more, but if there are three or four, five or six, and it is in a residential area, we would have concerns over that, as we did with the original consultation, which was quite a while ago. The consultation papers were feeling for ideas on how to make what these women were doing safer, and suggested that putting two or three together would help. Our biggest concern was the knock-on effect for residents and neighbours, with calls to the police and how to deal with people taking it upon themselves to deal with matters. That was our main concern, but the consultation was some time ago and I have not seen it since.

Q 154

Harry Cohen: Some people say that a different approach is needed to trafficked women, and a light touch in relation to non-trafficked women and rehabilitation, but there is a qualitative difference if trafficked women are involved. The police are in an interesting position. I wonder what you could do if legislation were to consider that distinction. Would you be able to discern which were trafficked women and which were not? What sort of powers would you need if Parliament went down that road and made that distinction?

Jan Berry:   That is a huge subject. For trafficked women—and children, for that matter—legislation is not the only solution. It is about what provisions can be made for such people. From the policing point of view, it raises the awareness of officers and of how they would know that they were dealing with trafficked women. It is not something that they would come across every day, although they do so increasingly often. Many police officers will look at a woman who appears to be enjoying herself and think that she is doing exactly what she wants to do. It is only when you look into the circumstances of that particular woman that you find an underlying tragic story. Legislation can do some things, but the first thing that you must do is to have an awareness programme and an acknowledgment that that is going on. Then you have to provide solutions for where you are going to house people and what support services you will provide. You do not go into that without having some understanding of the resource implications required by the outcomes.

Q 155

Edward Garnier: I want to go back to the Government proposal for a new law in respect of incitement to homophobic hatred. We have not seen what the Government will come up with yet, so this is all somewhat academic. I am sure that the three Ministers know precisely what they will say. For the moment, however, we have less idea than they do.
Can you provide some practical examples of the sort of behaviour that you think should be outlawed? Clearly, this is not a debate about whether or not we approve of homosexuality any more than an argument about race should include whether or not we approve of French people. But hatred is, presumably, something in your head. It is when it is expressed in a nasty way that it has a direct consequence—

Jan Berry:   My understanding is that when you are encouraging people to hate other people—

Q 156

Edward Garnier: Is it encouraging other people to hate or encouraging other people to express their hatred through violence?

Jan Berry: That is what I anticipate it to be.

Q 157

Edward Garnier: Would you need the additional violence as a consequence of the hate?

Jan Berry:   No. I think that prevention of offences has to be of prime importance. We should not have to wait for someone to use violence before we see that there could be a violent act. That is why there is the offence of incitement.

Q 158

Edward Garnier: So it could be threatening conduct?

Jan Berry:   It could be, but incitement is a more sinister word than threaten.

Q 159

Edward Garnier: I am trying to get my head round what you think will come out of the legislative chain. We clearly want a good law that works.

Jan Berry:   I would be very supportive of that. At the end of the day, we have to enforce the law, so it needs to work. We were sceptical as to how the incitement to racial hatred offence would operate. That is why I said that it has not caused as much difficulty as we anticipated, perhaps because people have been fearful to use it. If you are going to introduce a new offence of incitement to homophobia, you have to have the same clarity or the interpretation that those who are required to enforce the law will place upon it.

Q 160

Edward Garnier: But as yet your federation has not come up with a firm policy or a view on the practicalities? You have not come up with a form of words to help us?

Jan Berry:   In fairness, we only received notification of the intention to include homophobia this morning. We are happy to go away and look at that. We will also consult our members, and look at how provisions on incitement to racial hatred have been applied around the country. I know that your Committee intends to meet until the end of November. We will carry out our consultation and come back to you with the reply.

Q 161

Edward Garnier: Are you aware whether there is an equivalent law to the one that is proposed operating in Northern Ireland? Or is that law in relation to goods and services only?

Jan Berry:   I am not aware of that.

Maria Eagle: There is.

Q 162

Edward Garnier: I am told that there is. So if you have a Northern Ireland branch—

Jan Berry:   We have, and we are meeting them tomorrow.

Edward Garnier: That is very helpful. It will be very useful to hear from them how the law has been implemented there, what it looks like and whether it brings with it the concerns that the Evangelical Alliance has about the Bill, and whether it addresses the hopes and fears of those who are not of that disposition. There is a huge polarised argument and I am trying to find a way through it.

Jan Berry: I understand your difficulties. They are some of the same ones that police officers will face. There is a huge difference between people who are sensitive—

Edward O'Hara: Order. I must bring down the guillotine. That is the end of the time allotted for the Committee to ask questions of this panel of witnesses. I thank them for their contributions and invite the next set of witnesses to take their places.
If you are comfortable, could you please introduce yourselves? After that we should be grateful if you would take questions from the Committee.

Ben Summerskill:   I am Ben Summerskill, the chief executive of Stonewall.

Alan Wardle:   I am Alan Wardle, the director of parliamentary affairs at Stonewall.

Edward O'Hara: Thank you.

Q 163

David Burrowes: Given the current legislation, could you outline why there is a need for more? Could you be specific about the particular instances and acts that would need to be dealt with by new legislation that are not covered by the present provisions?

Ben Summerskill:   We are anxious that, although there is protection around racial and religious hatred, there is no such protection for gay people, and we are mindful that there has been an increase in the incidence in recent years of what seem to us to be very obvious examples of incitement to hatred that would not otherwise be caught by the criminal law. One key area is in the creation and distribution of what is quite often reggae music. If you will indulge me, I would be happy briefly to share with the Committee some examples of the sort of thing that we think should be caught by the law. It is only by quoting them that their offensiveness can be made clear.

Q 164

Edward Garnier: That would be useful, because at the moment this is all very theoretical.

Ben Summerskill:   There is an artist called Beenie Man who has produced a record called “Hang ‘em high”, which includes the lyrics
“Hang chi chi gal wid a long piece of rope”.
The key lyric in that means, “Hang lesbians with a long piece of rope.” The same guy has created a single called, “Batty Man Fi Dead”, which essentially means that gay men should die. That says
“All batty man fi dead!”
or, “All gay men should die.” Another single is a song called “Roll Deep”, of which the key chorus is
“Roll deep motherfucka, kill pussy-sucker”,
which is a reference to lesbians. It continues
“Tek a Bazooka and kill batty-fucker”,
which means, “Take a rocket launcher and shoot gay men dead.” An artist called Buju Banton has produced a single called “Boom, Bye Bye” which essentially means “Goodbye” and again involves encouragement to use an automatic gun to kill gay people.
An artist called Vybs Kartel has made a single called “Sen On” that includes the lyric
“Faggot fi get copper to di heart”.
“Copper” is a reference to a bullet, so the lyric means that faggots must get bullets to the heart. Then there is 
“Batty bwoy stand up anna talk and man a park”,
which is about a gay man talking to a man in a park. One of the lyrics is
“If you are from faggoty Waterford”—
which is a reference to somewhere in the West Indies—
“A wet yuh up wid di Maggy.”
which is a reference to a Magnum gun, and means, “I will kill you,” or, “You should be killed with a Magnum.”
I want to emphasise that CDs and songs like that are not just being performed in obscure dancehalls. Many of them were available yesterday afternoon for download on Amazon.co.uk. Those are explicit examples of music that we think should fall foul of criminal law.
In terms of literature, there has been a surge in recent years. That is why we have become concerned about the issue—Stonewall has never been in the business of asking for legislation just for the sake of it. There has been a surge in the distribution of literature that clearly incites hatred against minority communities. This is a British National party leaflet with a series of pictures of murdered children. It was widely distributed not long ago in north Wales. It says, 
“All these children would be alive today if our spineless politicians had the guts to declare war on the paedophiles.”
It continues:
“Small wonder that a climate has been created in which these evil creatures feel they can operate freely.”
The leaflet states:
“TV, radio and the press spew out pro-homosexual propaganda”.
and it concludes:
“The vote by majority of Labour, Lib-Dem and Conservative MPs to reduce the age of homosexual consent gives every indication that MPs are trying to legalise child sex step by step.”

Edward O'Hara: Order. I think that there is enough illustrative detail to make the point. We need to get more questions in. You may have the opportunity to bring more in later.

Edward Garnier: It was my fault. I needed to know what the problem was.

Ben Summerskill:   There is a catalogue of similar material that we can share with you.

Q 165

David Burrowes: Those are abhorrent examples that everyone would rightly deplore. Have there been examples or evidence of such rap lyrics leading to criminal offences by those who have heard them?

Ben Summerskill:   That is, of course, the key issue in incitement. The level of offence that incitement to racial hatred captures is that in which incitement is directed against a community as a whole rather than an individual—in which I do not say that someone should attack you, but suggest that they should attack anyone who happens to be like you.
As for the context in which these lyrics and leaflets are distributed, in this instance, the Crown Prosecution Service confirmed for us last Friday that in the past two years there has been a 167 per cent. rise in the number of convictions secured for offences with a homophobic element. That is not what is sometimes characterised as cranky complaints, or cases that might not have resulted in a conviction; that is 600 offences. The Home Office acknowledges that the vast majority of cases of homophobic violence in this country may well not be reported. Only yesterday we marked the second anniversary of the day on which Jody Dobrowski was kicked to death on Clapham common just for being gay—there is no dispute about that.
That is the public context in which we are anxious that such incitements are taking place. We simply find it difficult to accept any longer that there is no connection between the distribution of such poison in the public domain and the outcomes that we are seeing in terms of anti-gay violence on Britain’s streets.

Q 166

David Burrowes: In terms of those examples, can you say whether police have taken any action? Have they been prevented by current legislation from enforcement action?

Ben Summerskill:   As far as we understand—you have heard from the Police Federation—the issue is that the police do not have the capacity to take action that is likely to lead to prosecution if they cannot make a direct connection between the incitement to hatred and the individual who becomes the victim of violent crime.

Q 167

David Burrowes: Are there examples of the CPS taking no further action in relation to complaints concerning those particular examples?

Ben Summerskill:   There are examples of police feeling unable to take further action.

Q 168

David Burrowes: Have they made the decision not to take further action following complaints about those examples?

Ben Summerskill:   There have been complaints, and people have been advised that there is simply no legal basis on which to proceed with a complaint.

Q 169

David Burrowes: Taking it further, it says in our brief that you have stated:
“These protections aren’t about preventing people expressing their religious views in a temperate way.”
Can you give examples of what you think would be religious views being expressed in an intemperate way that need to be covered? You make the point that there needs to be a link between those rap lyrics and
“fundamentalist claims that all gay people are paedophiles”.
Those are your words.

Ben Summerskill:   As you have asked, there is another case that I have details of here, which occurred recently. A gentleman set up a group site on Facebook, which has almost 4 million users in this country. It was called “Homos burn in hell”. His initial defence was that he was religious, and the claim was that this represented Leviticus. Accompanying the headline “Homos burn in hell” was a picture of a Ku Klux Klansman with a burning cross—a contemporary image of an organisation known to carry out violent attacks on minority communities. The site included the legend, “I do not advocate homophobia—I prefer to call them AIDS monkeys”. I should emphasise—I say it with some reluctance—that that was not an obscure guy living in an attic somewhere. The man who put up that website was the elected official of a mainstream political party in this country.

Q 170

Charles Walker: Who?

Ben Summerskill:   Well, he is the chair of Conservative Future in the north-west, and he has acknowledged that he was responsible for that site. That is exactly the sort of claimed—

Q 171

David Burrowes: Do you think that that example should be covered by a homophobic hatred offence?

Ben Summerskill:   We would suggest, and I think that most right-minded people would suggest, that setting up a website as inflammatory as that would substantiate a claim that they were inciting hatred.

Q 172

David Burrowes: You will appreciate the need for clarity. What do you say should not be covered? I refer to evidence that has been presented to the Committee that says that you have argued on previous occasions, when Christians have expressed concerns about the implications of sexual orientation legislation on religious liberties, that they have been guilty of inciting hatred against gay people. You make reference to a prayer rally outside Parliament in January.
It is important, when we are considering freedom of expression, that you make the point about what is and is not covered by your references to inciting hatred against gay people. We have had reference in evidence sessions to the Bishop of Chester, to Joe and Helen Roberts—you will be familiar with the examples—to Iqbal Sacranie and others. For example, one complaint was about the Bishop of Chester talking about gay people needing to be, in his words, “reorientated” to heterosexuality. Would you seek to have such examples covered in legislation?

Ben Summerskill:   You have mentioned one or two specific instances. If the Committee does not mind, I shall respond specifically. You mentioned what you described as a “prayer rally” outside Parliament in January. That was actually the occasion of a vote on the sexual orientation regulations, when almost 100 children of primary school age were forced to stand in the freezing cold, some of them beneath posters that said, “Don’t corrupt us”, with a gentleman shouting, “Don’t allow homosexuals to pervert these children”. That is completely different from people holding a perfectly proper demonstration.

Q 173

David Burrowes: Should those incidents be covered by an offence of inciting hatred against gay people?

Ben Summerskill:   Our view is that the gentleman’s shouting, “Don’t allow homosexuals to pervert these children”—these were little tots, not adolescents or 19-year-olds—was almost certainly incitement. However, we are crystal clear that people are perfectly entitled to express their religious views, not least because hundreds of thousands of lesbian and gay people are profound believers in one religion or another. We are also crystal clear that the temperate expression of religious views should not be covered by the legislation. We hope that the draft clauses, when we see them—obviously, just like you, we have not—will make that both possible and clear.
You mentioned some comments made by Sir Iqbal Sacranie at the beginning of last year about homosexuals and disease. You are welcome, Mr. Burrowes, to check the record as hard as you wish. You will find that our view of those comments, at the time that they were made on the “PM” programme was that they were offensive. However, our view also, as was expressed at the time, was that people are entitled to make fools of themselves and say things of that sort. Indeed, no one connected with Stonewall in any way whatsoever called on Sir Iqbal to be arrested or investigated by the police for an instant. His views were factually inaccurate and offensive, but no one suggested that they should be caught by a law that involved inciting people to hatred.

Q 174

Charles Walker: I was interested to hear about the BNP leaflet, bearing in mind that I have a BNP problem in my constituency. They seem to hate everyone—I do not know where they get their vote from. They certainly do not like me at all. I have some sympathy, but that is the BNP for you.
Where do you think the line is between offensive behaviour and inciting hatred? Where is that line crossed?

Ben Summerskill:   As Mr. Garnier has pointed out, until we see some draft regulations, it is difficult to be crystal clear about a line. At the end of the day, a jury would make that—

Charles Walker: But in your mind; in your view.

Ben Summerskill:   I have just said that I hope, with some firmness, that we take a firm view that the temperate expression of offence is not something that should be a matter for the criminal law in this area, while incitement to hatred, which most people at home can understand reasonably clearly, should be. However, as is always the case with these things, they are notoriously facts-specific, so it is difficult to create a hypothetical situation. That is why I prefer to respond to specific instances, such as those that have been cited. One can then take a view as to whether this should fall one side or the other of a line.

Q 175

David Heath: I want to return to the absolutely appalling lyrics to which we referred earlier. I think that anyone listening to that would think, “How on earth is this being sold on our streets?” It is hard to understand how so-called respectable companies can be associated with lyrics of that kind. I know that various people have tried before to do something about that, but I am not clear about why no prosecution is possible under incitement-to-violence legislation in that respect, because the lyric in question was clearly not an incitement to hatred, per se, but an incitement to violence. I am interested to know why the police or the prosecuting authorities do not feel able to proceed on that basis.

Ben Summerskill:   Because they have to make the connection between the incitement and a specific offence that takes place. So, they would have to have someone who carried out a homophobic attack saying, “I was encouraged to do so by this specific individual”, and the encouragement would have to be specific to the victim or an identifiable group of people. An identifiable group of people might be six lesbians who all lived in one house. If someone said, “We’ll attack the inhabitants of that residence,” there would then be an identifiable connection.
It was because of what was then described as a lacuna—although “gap” seems a rather more straightforward word—that the legislation on incitement to racial hatred was first introduced 30 years ago.

Q 176

David Heath: I understand that. That is a good justification for legislation in this area.
To what extent, in your view, is intent an important part of the offence that we are considering?

Ben Summerskill:   Our view is that intent is an important part of the offence, certainly in respect of the incitement to racial hatred protections that we are committed to as the starting point for the legislation. The Liberal Democrats’ manifesto in 2005 pledged that the party would support protections on the same basis as those for race. That requires intent or recklessness as to outcome that is sufficient to suggest clear intent.

Q 177

David Heath: But it would not be difficult to impute intent into the examples that you quoted. Have you ever found examples where it would be impossible to impute intent, but where you might consider a reckless disregard of the consequences to be the argument?

Ben Summerskill:   Even in the case of music, it would be perfectly possible for someone who sang that sort of music to say that they had no intent for it to lead to any violent outcome.

Q 178

David Heath: Do not the words speak for themselves? If you are calling on people to take a gun and shoot somebody through the head, that is intent, not recklessness.

Ben Summerskill:   The simple fact is that someone would still be able to claim that it was a slightly fantastical, imaginary incitement. As always with these offences, the context is critical. The circumstances in which those lyrics or publications are created and then disseminated are likely to be critically important in determining the intent of the individuals involved.

Q 179

David Heath: The position that you quote, as far as I understand, clearly supports free speech for those with whom you profoundly disagree, and indeed people whose views you find offensive. How do you feel that we should safeguard that within the prospective legislation?

Ben Summerskill:   I expect that everyone in this room is absolutely committed to free speech. However, we all acknowledge that that does not give every person in the country the licence to do or say anything that they wish. The whole nature of criminal law is that it constrains people’s freedom of speech or action. We would have no difficulties if the provisions as drafted indicated the mindfulness of those who created them for the importance of free speech. Nobody wants to be unnecessarily draconian in any way whatsoever, and that is the proper message to give. There would be guidance published with the Act so that the intended nature of the protections would be made much clearer to all sorts of people.

Q 180

David Heath: So, you would do that through guidance on prosecution, rather than putting it on the face of the Bill?

Ben Summerskill:   That is a matter for Ministers. From time to time situations have arisen in which there have been claims of excessive heavy-handedness or clumsiness by the police—clearly the police have a very difficult job in this area. Their job would be made much easier if there was guidance that clarified the nature of the offence that was intended to be called.
We would have no objections to any indication in the Bill that there was a mindfulness of the importance of free speech. Indeed, we would not object to an indication in the legislation that there was mindfulness for no one to be deterred from expressing a genuine religious view in a temperate way.

David Heath: Thank you, that is very helpful.

Q 181

Philip Hollobone: I want to explore a little further why the existing law does not address your concerns. In particular, I want to look at section 5 of the Public Order Act 1986 and the case of Mr. Harry Hammond, with which you may be familiar. Mr. Hammond was a 69-year-old pensioner engaged in street preaching in Bournemouth. He was holding a sign that included the words “Stop homosexuality”, “Stop lesbianism”, and “Stop immorality” when he was surrounded by members of the public, some of whom knocked him to the ground. Mr. Hammond was arrested under the Act and eventually found guilty of a section 5 public order offence. His conviction was upheld in the High Court, which held that the magistrates had been entitled to find that relating homosexuality to immorality was insulting.
We must decide whether a change to the law is necessary, and I suggest that in many respects the order goes further than you are asking. You are asking for the incitement of hatred to be a crime, when it seems from that case that existing legislation provides that even relating homosexuality to immorality is already against existing legislation.

Ben Summerskill:   The circumstances of the case you outlined are very different from those that would be caught by this offence because to be caught by the Public Order Act a complainant must be present at the time. A converse or contrasting instance that would be caught as an incitement offence, but not by the Public Order Act, might be a poster on a wall. If someone was not present to say that they were offended or insulted by it, the police would not have grounds to proceed under the Public Order Act, although that poster could, depending on its content, encourage incitement to hate in the wider community.

Q 182

Philip Hollobone: So you would dispute evidence given to this Committee by Christian legal groups that says that it is not necessary under current incitement laws to show that anyone was persuaded by, or violently acted on, homophobic song lyrics. They are telling us that it is not necessary to demonstrate that there was a specific victim, and that the only test is to demonstrate that there is incitement to violent acts.

Ben Summerskill:   Clearly, I am not sure what that evidence or opinion is, but under the Public Order Act there must be a complainant and someone must be insulted or abused and present at the time or the police cannot act. I do not think that those groups would be the first to elide the various issues, but the distinction with this offence is that the person or community to whom insult and, indeed, detriment is caused is not necessarily present at the moment that the offence is committed.

Q 183

Philip Hollobone: My last question relates to section 146 of the Criminal Justice Act 2003, which I understand includes provisions better to deter homophobic crime by providing tougher sentences for offences motivated by hostility based on the sexual orientation of the victim. Are you saying that that law is not tough enough?

Ben Summerskill:   No. With respect, I am not saying that it is not tough enough. We helped Members of the House to draft the amendments that were introduced into that Bill, but that provision created the possibility of an aggravated sentence for anti-gay hate crime on the street, so it enables courts to give a higher sentence to someone who is convicted of an assault on the street. It is actually a different area of law from incitement and, indeed, from the completely differential protection in the Public Order Act some 20 years earlier.

Q 184

Harry Cohen: In a way, rap figures are easy, and we all agree on that. However, the prejudiced Christians or members of other religions are not so easy. Let me put to you a summary of what they say; “My religion says homosexuals are evil. They are a pestilence. They must be punished. They will rot in hell and in life, too.” Now that is clearly a little summary of what they say, and it is offensive. But they would also add that it is their free speech, and they would even say that it is temperate. But is not that hatred? Is not that something that should be covered by this law?

Ben Summerskill:   Again, I hope that we have made it crystal clear that we believe that there should be protection for people to express a religious view in a temperate way.

Q 185

Harry Cohen: But take the example that I have made.

Ben Summerskill:   In an offence such as this, the issue of context is critically important. In our view, therefore, the expression of the ideas of the gentleman from the Conservative Future website, who claimed to express a religious view, seems to us to be an act that should be caught by the law. One might also want to look at the context in which any expression is made that people should be killed or put to death because they are homosexual—members of the Committee will be mindful that that is from chapter 20, verse 13 of Leviticus. One might want to inquire whether that person was pursuing and articulating what is said in verse 10 or in verse 16 with quite so much enthusiasm; those versus make the same requirement that anyone who has committed adultery or who blasphemes is to be put to death.
Clearly, in context it would be a very good defence to say, “Well, I have been going around telling every adulterer and homosexual that I meet that they should be put to death.” Quite often and quite by chance, we find people choosing to peddle their particular obsession with homosexuals out of that religious context as a whole.

Q 186

Edward Garnier: I want to go back to the distinction between temperate and intemperate expression of incitement. Surely the temperate expression of incitement is much more effective than the intemperate. If part of your case is hung on the mood in which the words are uttered, you are cutting yourself short. Are not you and I able to persuade each other all the more effectively by being polite and temperate? Whereas, if I started ranting, you would think, “Well, the old boy’s lost it,” and you would pay no more attention—you may have thought that anyway—to what I had to say.
Therefore, if you get the eccentric, demonic person standing at Hyde park corner saying deeply unpleasant, ignorant and silly things, surely no one will pay attention to him apart from those who already adhere to what he says. One may be offended and insulted, but one would not be placed in any danger and the thing to do would be to move away from Hyde park corner. If I said the sorts of things that that lunatic would say in a temperate way, surely the effect of the words is altogether more telling.

Ben Summerskill:   In fairness, you are making a connection that I have never made, and I know of no one from Stonewall who has—it is possible that briefings that the Committee has received from others have suggested that. I have never suggested that one should defend temperate incitement. We have referred carefully to temperate expression of religious opinion, which seems to us to be the critical distinction. At the end of the day, if something is incitement to hatred, whether it was expressed temperately or intemperately would almost be immaterial. You make the extremely good point that you could express incitement to hatred in a hugely damaging way that might appear on the face of it to be decent and straightforward and thoughtful. However, as far as I am aware, I have never said that temperate incitement to hatred that leads to violence on the streets is somehow okay.

Q 187

Edward Garnier: I want to put two points. First, I would like to ask a question and secondly, I would like to put some words to you that the director of Liberty has uttered, with which I am sure you are familiar. It would be good to have your view on them.
The question is in regard to Northern Ireland, where there is already a law along the lines of what you are seeking. What is your experience, from people that you are in communication with in Northern Ireland, of the way that that law is working? Have there been any or many prosecutions? You might have heard the end of the last session with the police.

Ben Summerskill:   I heard you ask the witness if there has been a law in Northern Ireland. There has been a law and protections of the sort that we are seeking since 28 September 2004, if I remember correctly. Those protections are very similar to the protections around race. As far as we understand it—not wishing to typify any part of the United Kingdom—in an area where sometimes people can fall prey to intemperance of expression, there has been no substantive difficulty either for people of religious belief or for the Police Service of Northern Ireland.

Q 188

Edward Garnier: Do you know whether there have been any prosecutions? What you have said is all very well and we could all disapprove of all sorts of things.

Ben Summerskill:   We are not aware that there have been prosecutions on these grounds in Northern Ireland.

Q 189

Edward Garnier: Do you know whether that is because the police have not bothered—I do not mean that they are too lazy to do anything, but that they have not found it necessary to prosecute anybody because nobody is doing it—or because they find it administratively convenient not to get stuck into this rather difficult area of law?

Ben Summerskill:   We have not had complaints that the police have failed to act and if the law is acting as a sufficient deterrent to the incitement to hatred of homosexuals in Northern Ireland, that seems to us rather a good thing.

Q 190

Edward Garnier: Let us look at what Shami Chakrabarti said in an article in The House Magazine on 8 October. You are probably familiar with this:
“What seems to me to be one of the dangerous by-products of so much legislation, so much authoritarian legislation in the last decade, is that we can become quite infantilised as a population, that we think that everything that isn’t banned by criminal law equals sensitive, smart, good conduct. And what we should have is a space, a personal ethical moral space that governs us before the criminal law governs us.”
That might be the counsel of perfection, but in senior common rooms up and down the country and no doubt in the meeting rooms in this House, all sorts of people would understand what she is saying. What we need to be persuaded of is that there is a genuine evidence-based need for a law that protects real people from real crime and not just something that it would be nice to have because it would send out a message.

Ben Summerskill:   You make a very good point. I cannot comment on what Shami Chakrabarti chooses to say. The reality is that in the human rights framework in which many people feel we now live, there are many sensible people who say that that, nevertheless, does not mean that everyone has human rights to do or say whatever they wish. Human rights should be applied proportionately and with responsibility and we do not accept that where there are robust protections for some communities, there should not be similar protections for others where there is clear evidence. I have cited some evidence and the Chairman asked me to desist precisely because I did not want to take you through the entire volume, but we have cited very clear examples of what we regard as transparent evidence that there is an issue.
Polling conducted by YouGov confirms that almost 90 per cent. of electors think that there should be an offence of incitement to hatred on the grounds of sexual orientation. We say—I suspect that the voters who have been polled acknowledge this—that there is clear evidence of violence against gay people on our streets that is almost certainly connected, even if the absolutely direct connection that would enable the current criminal law to bite cannot be proved to exist.

Q 191

Edward Garnier: This is not an idea that I have thought about very much, but it just occurred to me as you were talking just now. We talk about hatred, and for many traditionalists who practise within the criminal law what they look for in a criminal law is protection against injury to the body or injury to property: murder; assault; arson. Although hatred is ignorant and unpleasant, especially when it is irrational, it is much more difficult to legislate against because it goes on inside people’s heads and does not necessarily lead to an outward expression of physical consequences. Would it be helpful to frame the law so that it said that people should not be required or forced by other people’s misconduct to live in fear, rather than trying to outlaw hatred? I accept that I only just thought about this while we were having this conversation.

Ben Summerskill:   You are taking a progressive approach to modernising the law. There is an argument for it; I have no doubt that the parliamentary counsel would be happy to have that argument, too. We think that a framework has been in place around race for 30 years that, in spite of the difficulties that you have just outlined, has provided protection and significant deterrents. It has been a framework whereby the Attorney-General has had to approve prosecutions and juries need carefully to consider the outcome of those prosecutions. We are perfectly happy to trust 12 sensible people to make a judgment about what is incitement to hatred.

Q 192

Edward Garnier: The trouble is that the 12 sensible people do not get to be 12 sensible people until the police officer has considered the facts in front of him and reported them to the Crown Prosecution Service, which then has to make a decision about whether to take it to the Attorney-General. There is quite a long preparatory process before you get anywhere near a court. We need clarity at all stages, not only at the trial.

Ben Summerskill:   That is true, but we are not convinced that clarity would be assisted by having a completely separate set of regulations for one minority community as opposed to others. Quite often the clarity is assisted in law by allowing the police and prosecution services to deal with a similar set of protections that they can apply in a way that they find easier and more transparent rather than more complicated than previously.

Q 193

Edward Garnier: The more I listen to arguments and evidence about this subject, which is clearly troublesome for many people, the more I come to the conclusion that the gap for what is loosely described as the Christian right is not as big as many people think. Presumably the Christian right, or those who do not think that the law is necessary, do not want to make members of minorities live in fear or suffer hatred.

Ben Summerskill:   I am sure that that is true. The Christian right may not always be right, but they are perfectly right to express concern that their temperate and fair-minded expression of religious belief should not be curtailed.

Edward Garnier: I think that we are stuck on the problem that we do not yet know what the Government will come forward with. However, I must say that I have found this conversation interesting.

Edward O'Hara: We are within the last minute, and I do not think that there is time for one more question and answer. That brings us to the end of the time allotted for the Committee to ask questions of these witnesses, whom I thank for their attendance and contributions.
Further consideration adjourned.—[Mr. Khan.]

Adjourned accordingly at Seven o’clock till Thursday 18 October at Nine o’clock.